THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A    TEEATISE 


SPECIFIC    PERFORMANCE 


CONTRACTS, 


IXCLUDIXG 


THOSE  OF  PUBLIC  COMPAAIES. 


BY 


EDWARD  FRY, 

OF  Lincoln's  inn.  esq.,  n.  4.,  barrister-at-la.w. 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO., 
LAW    BOOKSELLERS    AND    PUBLISHERS, 

Mo.     5. 3  5    CHESTNUT     STRKET. 
18  58. 


Robb,  Pile  Sc  IJ'Elroy.  Pr'a, 
Lodge  Street,  PhUad*. 


PREFACE. 


TuE  following  pages  contain  an  attempt  to  inquire  into  the  principles 
which  govern  Courts  of  Equity  in  the  Specific  Performance  of  Contracts. 
I  offer  this  little  book  to  the  members  of  my  profession,  with  somewhat 
of  hope,  because  I  know  the  indulgence  with  which  they  are  wont  to 
accept  the  results  of  honest  labour  spent  on  professional  subjects;  but 
with  much  more  of  diffidence,  because  I  am  not  ignorant  of  the  difficul- 
ties of  the  subject  on  which  I  have  written,  or  the  shortcomings  of  my 
own  performance. 

The  scope  and  object  of  my  essay  will  be  sufficiently  learned  from  the 
Table  of  Contents.  It  will  at  once  be  seen  that  they  are  essentially  dif- 
ferent from  those  of  the  admirable  works  of  Lord  St.  Leonards  and  Mr. 
Dart  on  the  Law  of  Vendors  and  Purchasers.  Those  treatises  discuss 
the  contract  of  sale  of  real  estate  and  all  the  relations  thence  arising,  so 
that  the  doctrine  of  specific  performance  is  treated  of  only  as  one  mode 
in  which  that  contract  is  enforced  :  whilst  the  present  work  is  designed 
to  elucidate  the  principles  of  specific  performance  in  general,  and  the 
contract  of  sale  only  so  far  as  it  requires  attention  as  one  of  the  contracts 
which  the  court  enforces.  If  the  object  of  those  learned  treatises  had 
not  been  thus  distinct  from  that  of  the  following  pages,  I  should  never 
have  thought  of  committing  them  to  the  press. 

The  connection  of  the  difi'erent  branches  of  law  is,  like  the  connection 
of  the  sciences,  so  close  as  often  to  embarrass  the  writer  who  attempts  to 
treat  of  one  subject  by  itself.  I  have  found  this  difficulty  continually 
recurring,  as  I  have  been  engaged  in  composing  this  book,  because  it  is 
by  no  means  easy  to  decide  how  much  of  the  law  on  many  questions 
iiught  to  find  place  in  a  treatise  on  the  principles  and  practice  of  the 


728224 


iv      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

courts  in  specific  performance,  and  how  much  ought  to  be  referred  to  a 
discussion  of  the  particular  species  of  contract  to  which  the  point  may 
relate.  I  have  endeavoured  on  each  occasion  to  solve  this  question  with 
a  view  to  the  practical  utility  of  the  following  pages,  and  to  what  I  sup- 
pose a  lawyer  would  reasonably  expect  to  find  in  a  treatise  bearing  the 
title  of  this  volume. 

There  is  now  pending  in  Parliament  a  bill  which  has  been  introduced 
by  the  solicitor-general,  Sir  Hugh  M.  Cairns,  intituled  "  A  bill  to  amend 
the  course  of  procedure  in  the  High  Court  of  Chancery,  the  Court  of 
Chancery  in  Ireland,  and  the  Court  of  Chancery  of  the  county  palatine 
of  Lancaster,"  by  which  it  is  proposed  to  be  enacted,  that  "  in  all  cases 
in  which  the  Court  of  Chancery  has  jurisdiction  to  entertain  an  applica- 
tion for  an  injunction  against  a  breach  of  any  covenant,  contract,  or 
agreement,  or  against  the  commission  or  continuance  of  any  wrongful 
act,  or  for  the  specific  performance  of  any  covenant,  contract,  or  agree- 
ment, it  shall  be  lawful  for  the  same  court  to  award  damages  to  the  party 
injured,  either  in  addition  to,  or  in  substitution  for,  such  injunction  or 
specific  performance,  and  such  damages  may  be  assessed  in  such  manner 
as  the  court  shall  direct."  The  desirableness  of  clothing  courts  of  equity 
with  a  jurisdiction  in  damages  in  the  cases  referred  to  in  this  clause  of 
the  bill  appears  to  be  beyond  question — as  I  have  already  remarked  in 
the  chapter  on  Compensation  in  the  present  work  (see  §  795,) — and  the 
passing  of  the  solicitor-general's  bill  will  be  a  most  material  improvement 
to  the  jurisprudence  of  the  country. 

Several  important  decisions  on  the  subject  of  specific  performance 
have  appeared  during  the  progress  of  these  pages  through  the  press, 
references  to  which  have  been  inserted  in  the  notes. 

My  friend  Mr.  J.  P.  Green,  of  the  Middle  Temple,  has  obligingly 
read  the  proof-sheets  of  this  book :  I  gratefully  acknowledge  his  kind- 
ness in  so  doing. 

E.  F. 
5,  New  Square,  Lincoln's  Inn, 
24tb  May,  1858. 


CONTENTS. 


The  pages  referred  to  are  those  between  brackets  [         ]. 
Table  of  Cases,     ......••  xvi 

PART    I. 

OF  THE  JURISDICTION. 
CHAPTER   I. 

OF   THE   CONTRACTS   IN   GENERAL  WHICH   ARE   SUBJECTS    OF   THE    JCUISDICTIOX. 

Principle  of  the  Jurisdiction. — Legal  Remedy  deficient. — By  Default  of  the 
Plaintiff. — From  something  in  the  Contract. — From  the  Nature  of  the 
Subject-matter. — From  the  Parties. — From  the  Form  of  the  Contract. — 
Former  Practice  of  the  Court. — Legal  Remedy  inadequate. — Cases  where 
Legal  Remedy  is  adequate. — Contract  for  Yearly  Tenancy. — Contract  to 
make  Railway. — Agreement  to  pay  Money. — Alternative  Remedy. — Cases 
where  Legal  Remedy  not  so  beneficial. — Sir  John  Leach's  Doctrine. — 
Contracts  under  Compulsory  Powers. — Contract  enforced  by  Vendor. — 
Stock. — Railway  Shares. — Chattels. — Unique  articles. — Defendant  alone 
can  supply  the  Plaintift''s  Requirements. — Savouring  of  the  Realty. — 
Trust  constituted. — Damages  not  an  accurate  Satisfaction. — Incapacity 
of  the  Court  to  execute  the  Contract. — Goodwill  of  a  Business. — Where 
the  Interference  of  the  Court  would  be  useless. — Agreements  to  enter  into 
Partnership. — Agreement  for  lease,  where  Covenant  has  been  broken. — 
Contracts  to  build  and  execute  Works. — Exceptions:  1.  Where  the  Work 
is  defined  and  essential  to  the  Plaintiff;  2.  Where  Part  performance. — 
Hiring  and  Service. — Where  Court  had  no  original  Jurisdiction. — Fo- 
reign Contracts. — Contracts  as  to  Land  abroad. — Voluntary  Contract. — 
W^here  PlaintiflF  has  proceeded  at  Law,     .  .  .  .  • 

CHAPTER    IL 

OF   CONTRACTS    WITH   A   PENALTY. 

Effect  of  a  Penal  Sum  on  the  Jurisdiction. — The  Question  stated. — The 
whole  Scope  of  the  Contract  regarded. — As  to  the  Amount  of  the  Pe- 


I       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

nalty. — The  Benefit  of  the  Penalty  and  of  the  Agreement  result  to  dif- 
ferent Persons. — Single  Sum  and  continuing  Act. — Increased  Rent. — 
Where  a  Forfeiture  in  addition. — Where  the  Agreement  reasonable  only 
as  an  alternative  one. — Two  Penal  Sums. — Procedure,    .  .  .26 


32 


PART    11. 

OF  PARTIES  TO  THE  SUIT. 
CHAPTER    I. 

OF   THE   GENERAL   RULE. 

The  Parties  to  the  Contract  to  be  Parties  to  the  Suit. — Adverse  Rights. — 
Sub-purchaser. — Alienee  of  Vendor. — Exceptions  to  General  Rule. — No- 
vation.— Reversioner. — Remainderman. — Assignees  in  Bankruptcy. — 
Some  suing  or  sued  on  behalf  of  all. — Avoiding  Multiplicity  of  Suits. — 
Where  one  Lot  sold  is  involved  with  adjoining  Lot, — Adverse  claimants. 
— Voluntary  Settlement. — Trustee  and  Cestui  que  trust. — Multifarious- 
ness, ......... 

CHAPTER    IL 

OF  A  STRANGER  TO  THE  CONTRACT. 

A  Stranger  cannot  sue. — Hook  v.  KInnear  and  Philips. — Exceptions. — 1. 
Exception  as  to  Marriage-contracts. — As  to  Issue. — As  to  Collaterals. — 
Goring  V.  Nash. — As  to  Appointees. — Sutton  v.  Chetwynd. — As  between 
Collaterals  and  Original  Parties. — 2.  Exception  from  Relationship  of 
Parties. — 3.  Exception  where  third  Party's  Status  changed,         .  .     41 

CHAPTER    II L 

OF  THE  DEATH  OF  A  PARTY  TO  THE  CONTRACT. 

Death  of  a  Party. — Death  of  Vendor. — Widow. — Contract  enforced  by  Cre- 
ditors.— Death  of  Purchaser. — Death  of  proposed  Lessee. — Discharge  of 
ihe  contract  by  Death,  where  personal  Qualities  are  required,     .  .     47 

CHAPTER    IV. 

OF   AN    ASSIGNMENT    OF   THE   AGREEMENT   OR   OF   THE   PROPERTY. 

Assignment  of  the  Agreement. — Assignment  by  way  of  Mortgagee. — Ex- 
ceptions.— 1.  Where  the  Contract  is  Personal. — 2.  Where  there  is  a  Pro- 
viso against  Assignment. — 3.  Illegality  of  Assignment. — Maintenance. — 
Public  Trust. — Offer  not  assignable. — Assignmcntof  the  Property. — As- 
.signee  a  Defendant. — In  case  of  Covenants. — Covenants  for  further  As- 
surance.— Contracts  to  devise  Lands. — By  Amalgamation  of  Companies,     51 


CONTENTS.  vii 

CHAPTER    V. 

OF    THE    LIABILITY    OF   COMPANIES    FOR   THE   CONTRACTS    OF   TUEIR    PROMOTERS. 

Edwards  v.  Grand  Junction  Railway  Company. — Conditions  under  which 
the  Doctrine  is  applicable. — The  Company  must  have  taken  the  Benefit 
of  the  Agreement. — The  Anjrecmcnt  must  have  been  warranted  by  the 
Terms  of  Incorporation. — Doubts  on  the  General  Principle,       .  .61 

CHAPTER    VI. 

OF    AGENCY. 

Contracts  by  Agents. — Agents  appear  on  Contract  as  such. — Agents  appear 
on  Contract  as  Principals. — Principals  suing  and  being  sued. — Agents 
not  generally  to  be  Parties. — Question  whether  Party  is  Principal  or 
Agent. — Agent  suing. — Agent  being  sued,  .  .  .  .67 


PART    III. 

OF  THE  DEFENCES  TO  THE  SUIT. 
CHAPTER    I. 

OF    THE    INCAPACITY    TO    CONTRACT. 

Nature  of  the  Defence. — When  Incapacity  to  be  judged  of. — Married  Wo- 
men.— Under  Power  informally  exercised. — Parties  to  suit  in  respect  of 
separate  Estate. — As  to  real  Estate. — Lunatics. — Persons  standing  in 
confidential  Relations,       .  .  .  .  .  .  .71 

CHAPTER    II. 

OF    THE    NON-CONCLUSION   OF    THE    CONTRACT. 

No  Specific  Performance  except  of  a  concluded  Contract. — Proposal  and 
Acceptance. — Essentials  of  the  Acceptance. — The  Acceptance  must  be 
unequivocal. — And  without  Variance  from  the  Offer. — And  not  introduce 
any  new  Term. — What  is  not  a  new  Term. — The  Acceptance  must  be 
without  unreasonable  Delay. — What  determines  the  Proposal. — 1.  With- 
drawal.— 2.  Refusal. — Variations  of  the  Proposal. — How  the  Acceptance 
may  be  made. — By  Parol. — By  the  Bill. — By  Acts. — Time  at  which  the 
contract  is  constituted. — An  Agreement  to  do  an  Act  on  Demand  and  a 
Demand  constitute  a  Contract. — Representation  and  Conduct. — Repre- 
sentation of  Things  past. — Representation  of  Things  future. — Represen- 
tation must  be  clear  and  absolute. — Where  the  Engagement  is  merely 
honorary. — Maunsell  v.  White. — Money  v.  Jorden. — Morehouse  v,  Col- 
vin. — Cases  where  Representation  binding. — In  cases  of  Marriage-con- 
tracts.— Luders  v.  Anstey. — Saunders  v.  Cramer. — Montgomery  v.  Reilly. 
— Du  Biel  V.  Thompson,   .  .  .  .  .  .  .75 


viii     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 
CHAPTER    III. 

OF  THE  INCOMPLETENESS  OF  THE  CONTRACT. 

Contract  must  be  certain,  fair,  and  just — Where  Part-performance. — Com- 
pleteness to  be  ascertained  at  the  filing  of  Bill. — Exceptions. — When  In- 
completeness arises  from  Default  of  Defendant. — Or  may  be  made  good 
from  the  Contract  itself. — Completeness  to  be  considered. — 1.  As  to  Sub- 
ject-matter.— Where  ascertainable  though  not  ascertained. — 2.  As  to  Par- 
ties.— 3.  As  to  Price. — Cases  where  not  ascertained. — Mode  of  Ascertain- 
ment indicated  by  the  Contract. — First  class  of  Cases. — Second  Class  of 
Cases. — 4.  As  to  Terms  of  the  Contract. — Instances  of  Contracts  held  in- 
complete.— Implied  Terms. — Condition  for  good  Title  implied. — In  Agree- 
ments for  Under-leases. — Implication  as  to  usual  Stipulations. — Implied 
Terms  rebutted  by  a  Condition  or  by  Notice,         .  .  .  .90 

CHAPTER    IV. 

OF  THE  UNCERTAINTY  OF  THE  CONTRACT. 

What  Amount  of  Certainty  required. — Instances,     ....  102 
CHAPTER    V. 

OF   THE    WANT    OF    FAIRNESS    IN   THE    CONTRACT. 

Nature  of  the  Fairness  required. — When  ascertained. — Contracts  involving 
Contingencies. — The  Contingency  must  be  really  such  to  both  Parties. — 
The  Contingency  must  have  been  understood  as  within  the  Contract. — 
Fairness  of  surrounding  Circumstances. — Intentional  Unfairness  not  ne- 
cessary to  be  proved. — Suppression  of  a  Fact. — Intoxication. — Contract 
injurious  to  Third  Persons. — Contracts  necessitating  a  Breach  of  Trust. 
— Cases  of  Quasi  Trustees. — Rescinding  Contract  on  this  ground,         .     lOfi 

CHAPTER    VI. 

OF  THE  HARDSHIP  OF  THE  CONTRACT. 

Hardship  a  Bar  to  the  Court's  Interference. — When  ascertained. — Instances 
of  subsequent  Circumstances  disregarded. — Instancss  of  subsequent 
Events  regarded. — Subsequent  Events  dependent  on  Plaintiff. — Distinc- 
tion between  patent  and  latent  Hardship. — Hardship  induced  by  the 
Party  himself. — Failure  of  Party's  Scheme. — Hardship  on  Members  of  a 
Corporation. — Forfeiture. — Where  Vendor  would  be  left  subject  to  a  Lia- 
bility.— Liability  disregarded. — Miscellaneous  instances  of  Hardship. — 
In  contracts  by  Companies. — Sales  of  Reversionary  Interests. — Where 
Principle  does  not  apply,  .  .  .  .  .  .  .11'; 

CHAPTER    VI L 

OF    INADEQUACY   OF   THE   CONSIDERATION. 

How  it  may  appear  in  the  Contract. — Difference  between  Cases  of  Vendor 
and  Purchaser. — Inadequacy  with  other  Circumstances. — Inadequacy  by 
itself. — As  a  Ground  for  setting  aside  Contracts. — As  a  Defence  to  spe- 
cific Performance. — Mere  Inadcciuacy  not  a  Defence. — Reason  of  the 
Rule. — Rule  of  the  Civil  Law. — When  Inadequacy  is  to  be  ascertained. 
— In  Sales  of  Reversionary  Interests,        .  .  .  .  .127 


CONTENTS.  ix 

CHAPTER    VII I. 

OF   WANT   OF   MUTUALITY   IN   THE   CONTRACT. 

Mutuality  required. — Instances. — In  Contracts  under  Powers. — Time  at 
which  Mutuality  is  to  be  judged  of. — Exceptions. — 1.  Unilateral  Con- 
tracts.— 2.  Waiver. — 3.  Agreement  signed  by  one  Party  only. — Alleged 
Reasons. — Agreement  in  Deed-poll. — 4.  Vendor  has  only  partial  Interest. 
— Doubts  of  Lord  Redesdale. — Restrictions  on  the  Right  of  the  Purcha- 
ser to  take  the  Vendor's  Interest. — 1.  Compensation  not  ascertainable. — 
2.  Prejudice  to  Third  Parties. — 3.  Large  Part  not  Vendors. — 4.  Pur- 
chaser aware  of  Vendor's  Title. — Purchaser  privy  to  intended  Fraud,     .  133 

CHAPTER    IX. 

OF   THE   ILLEGALITY   OF   THE   CONTRACT. 

Illegality  a  Bar  to  Performance  of  a  Contract. — Peculiar  nature  of  the  De- 
fence.— How  far  the  Illegality  must  be  made  out. — Where  a  Trust  is 
constituted,  .  .  .  .  .  •  .  .143 


CHAPTER    X. 

OF    THE    CONTRACT    BEING    ULTRA    VIRES. 

Contracts  by  Corporations  must  be  within  their  Powers. — But  are  presumed 
to  be  Good. — Where  the  Presumption  is  rebutted. — What  Contracts  are 
prohibited. — Contracts  defeating  Object  of  Incorporation. — For  Objects 
foreign  to  Incorporation. — Contract  valid,  when  for  something  involved 

■  in  the  Object  of  Incorporation. — Where  a  Variation  of  Means  only,  not 
of  Ends. — Where  one  Party  has  not  Notice  of  its  being  ultra  vires. — 
Cases  between  Shareholders  and  Directors,  .  .  .  .147 


CHAPTER    XL 

ON   THE   STATUTE    OF   FRAUDS   AND    THEREIN   OF   PART   PERFORMANCE. 

Fourth  Section  of  the  Statute. — I.  How  taken  Advantage  of. — By  Demun-er. 
— By  Plea.^-By  Plea  and  Answer. — By  Answer  denying  the  Agreement. 
— Or  admitting  a  parol  Agreement  and  pleading  the  Statute. — 11.  What 
satisfies  the  Statute. — The  Writing  must  express  a  concluded  Agreement. 
— A  formal  Agreement  intended. — Signed  by  one  Party. — Signature. — 
How  far  Intent  to  sign  necessary. — Must  be  a  Writing  of  the  Name. — In 
Pencil. —  In  Print. —  Initials. —  Agency. — Ratification. — Revocation. — 
Auctioneer. — Clerk  of  Agent. — Solicitor. — Letters. — Letters  referred  to 
for  Signature. — Letters  to  supply  a  Term. — Letters  as  constituting  the 
Contract. — Letters  repudiating. — Parol  Agreement  before  Marriage,  writ- 
ten after. — Pleading. — III.  What  takes  an  Agreement  out  of  the  Statute. 
— 1.  Sale  by  the  Court. — 2.  Admission. — As  against  Representatives. — 
3.  Fraud. — In  Marriage  Contracts. — In  Wills. — 4.  Of  part  Performance. 
— Essentials. — The  Acts  must  refer  to  an  Agreement. — And  not  to  any 
other  Title. — The  Acts  must  render  Non-performance  a  fraud. — Where 
not  fraudulent  from  Character  of  the  Person. — From  Nature  of  the  Act. 
— From  there  being  alternative  Remedies. — The  Agreement  must  be 
such  as  can  be  enforced. — And  not  of  an  honorary  Character. — Or  in- 
complete.— Of  particular  Acts. — Possession. — Laying  out  of  Money. — 
Payment  of  Purchase-Money. — Of  other  Money  that  may  be  repaid. — 


FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS, 

Payment  of  Auction  duty. — Payment  of  additional  Rent. — Marriage. — 
Cohabitation. — Previous  Acts. — Preparatory  Acts. — Performance  by  an- 
other party  to  the  Agreement. — Of  the  Evidence  of  the  Contract. — It 
must  be  clear. — What  Variations  are  immaterial. — Part  reduced  to  Writ- 
ing.— Agreement  admitted  in  Ansvrer. — Denied  by  Answer. — A  different 
Agreement  set  up  by  Answer. — Inquiry,  ..... 


155 


CHAPTER    XII. 

OF   MISREPRESENTATION. 

Effect  of  a  Misrepresentation. — Elements. — 1.  Statement  actually  untrue. 
— 2.  The  not  knowing  it  to  be  true. — 3.  The  Intent  of  the  Misrepresenta- 
tion.— Corrupt  Motive  not  necessary. — 4.  The  Reliance  on  the  Statement. 
— Vagueness  of  the  Representations. — Other  Grounds  for  considering 
that  there  was  not  Reliance. — Resort  to  other  Means  of  Knowledge. — 
Other  Knowledge  itself. — Where  Defect  is  patent. — Analogy  with  War- 
ranties.— The  Evidence  of  Knowledge  must  be  clear. — Other  Means  of 
Knowledge  open  to  the  Purchaser  not  enough. — Doctrine  of  Notice  does 
not  apply. — Greneral  Statement  inconsistent  with  the  Misrepresentation 
is  not  enough. — Nor  recommending  other  Party  to  consult  his  Adviser. 
— Instances. — Sale  with  all  Faults. — Assignment  of  a  Contract  affected 
by  Misrepresentation. — 5.  The  Misrepresentation  must  be  essential. — 
Effect  of  Misrepresentation,  .  .  .  .  .  .191 


CHAPTER    XIII. 

OF   FRAUD. 

Fraud. — Suppression  of  a  Fact. — Suppression  by  Purchaser. — Puffing  at 
Auctions. — Fraud  by  Corporations. — Fraud  by  Agents. — Waiver,  .  206 


CHAPTER    XIV. 

OF   MISTAKE. 

Kinds  of  Mistake  that  occur  In  Contracts. — Principle  of  the  Defence. — Parol 
Evidence  admitted  for  Defence. — Mistake  of  the  Defendant. — Mistake 
purely  of  Defendant. — Parol  Variation  set  up  by  Defendant. — Where  en- 
forced.— Where  Bill  dismissed. — Plaintiff  put  to  his  Election. — Variation, 
how  set  up. — Evidence. — Mistake,  a  Ground  for  Rescission. — And  for 
Rectification. — Parol  Evidence  admitted  for  Rectification. — But  must  be 
clear. — What  Kinds  of  Mistake. — Mistake  of  Law. — Speculation  as  to 
Pacts. — Mistake  not  about  the  Essence  of  the  Agreement. — Where  the 
Writing  purposely  differs  from  the  Agreement. — Subsequent  Parol  Agree- 
ment.— Specific  Performance,  with  Rectification  of  Mistake. — Cases  of 
entire  Exclusion  of  Parol  Evidence  for  Plaintiff. — Previous  Cases  ob- 
served on. — Cases  for  Admission  of  Parol  Evidence  for  the  Plaintiff. — 
Opinions  of  American  Jurists. — Of  Mr.  J.  Story. — Of  Mr.  C.  Kent. — 
Cases  of  Rectification  and  Relief  in  same  Suit,    .  .  .  .21'. 


CHAPTER    XV. 

OK  THE  INCAPACITY  OF  THE  COURT  TO  PERFORM  PART  OF  THE  CONTRACT. 

Subjects  of  the  Chapter. — Contract  divisible  or  not. — Property  in  one  Lot. 
— Distinct  Lots. — Different  Prices. — Cross-contracts  of  sale. — Court  will 


CONTENTS.  xi 

not  perforin  Part. — Where  a  Deed  to  be  executed. — In  Marriage  Con- 
tracts.— Exceptions. — 1.  When  Right  of  Suit  is  in  itself  perfect. — 2.  Con- 
tract may  be  completely  performed,  though  there  are  future  Acts. — 3. 
Where  Part  cannot  be  performed  through  Defendant's  Default. — 4. 
Where  the  Contract  has  negative  and  positive  Stipulations. — 5.  Where 
the  Arrangement  is  partly  honorary. — G.  Where  the  Agreement  is  alter- 
native.— 7.  Where  the  Part  which  the  Court  could  not  enforce  is  per- 
formed,      .........  237 

CHAPTER    XVI. 

OF   DEFECT    IN    TUE   SUBJECT-MATTER   OF   THE    CONTllArT. 

Nature  of  the  Defence. — Defects  patent  or  latent. — Patent  Defects. — Latent 
Defects. — Defect  unknown  to  both  Parties. — Variation  which  is  not  a 
Defect. — Uncertainty  in  Subject-matter  and  Description  of  it. — Sale  with 
all  Faults. — f^ffect  on  the  Contract  of  a  Defect,    ....  24S 


CHAPTER    XVII. 

OF   THE    WANT   OF   A    GOOD   TITLE. 

Title  must  be  free  from  Doubt. — Former  Practice. — Present  Rule. — Obser- 
vations on  the  Rule. — Amount  of  Doubt. — Moral  Certainty  only  required. 
— Titles  depending  on  Presumption. — Cases  where  the  Presumption  not 
sufficient. — Of  the  Presumption  Omnia  rite  esse  acta. — Nature  of  the 
Doubt,       .  .  .  .  .  .  .  .  .253 

CHAPTER    XVIII. 

OF   FAILURE   OF    THE   CONSIDERATION". 

Events  affecting  the  Subject-matter. — Events  happening  before  the  ConclH- 
sion  of  a  Contract. — When  is  the  contract  complete. — A  Condition  not 
performed. — Events  subsequent  to  the  Contract  being  entered  into  and 
become  absolute. — Instances. — Extinction  of  Subject-matter  by  Lapse  of 
Time  after  filing  of  Bill  and  before  hearing. — Suggested  Result  of  the 
Cases. — Subsequent  Illegality,      ......  262 

CHAPTER    XIX. 

OF  DEFAULT  ON  THE  PART  OF  THE  PLAINTIFF. 

Plaintiff  must  show  Performance  and  Willingness  to  perform. — Represen- 
tations.— Plans. — Default  must  be  of  an  important  Term. — Default  in 
respect  of  collateral  Contract. — What  excuses  Performance. — Infancy. — 
Impossibility  of  Performance. — Exception  as  to  Marriage  Contracts. — 
Limitations  of  the  Exception. — Default  in  respect  of  Acts  to  be  done. — 
Assignees  in  Bankruptcy. — Bankruptcy  of  Plaintiff. — Insolvency. — Fe- 
lony.— Loss  of  Deeds,       .......  270 

CHAPTER    XX. 

OF  ACTS  IN  CONTRAVENTION  OF  THE  CONTRACT. 

Nature  of  the  Defence. — In  Cases  of  Leases. — In  Cases  of  Purchases. — A.s 
to  Covenants  to  renew. — Limitations  of  the  Principle. — Breach  not  wil- 
ful.— Nominal  Breaches. — Waiver  of  Breach. — Acts  rendering  Perform- 
ance inequitable,  .......     2S2 


xii      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 
CHAPTER    XXI. 

OF   THE    XOX-PERFORMANCE   OF   CONDITIONS. 

Contracts  not  to  be  performed  until  absolute. — Condition  express  or  implied. 
— Railway  Contracts. — Waiver,     ......  287 

CHAPTER    XXII. 

OF  THE  INCAPACITY  OF  THE  DEFENDANT  TO  PERFORM  HIS  PART  OF  THE 

CONTRACT. 

Principle  of  this  Defence. — Instances. — When  to  be  judged  of. — Applica- 
tion to  Parliament  required. — Subject-matter  not  the  Vendor's. — Consent 
of  Third  Parties. — Of  Execution  cy  pres. — Contract  modelled  so  as  to  be 
legal. — Contract  modelled  so  as  to  be  possible. — In  Railway  Cases. — Im- 
possibility of  one  Alternative. — One  Alternative  originally  impossible. — 
One  Alternative  rendered  impossible  by  the  act  of  God. — One  Alterna- 
tive prevented  by  the  other  party. — One  Alternative  prevented  by  a 
Stranger,   .  .  .  .  .  .  .  .  .290 

CHAPTER    XXIII. 

OF   THE    RESCISSION   OF   THE    CONTRACT. 

Modes  of  Rescission. — Right  to  rescind. — Novation  by  Intervention  of  a 
new  Person. — Novation  by  Inti'oduction  of  a  new  Term. — Novation  must 
be  a  valid  Contract. — Evidence. — Rescission  simply. — Evidence  irrespec- 
tive of  Statute  of  Frauds. — Evidence  under  Statute  of  Frauds. — Evi- 
denced by  Conduct. — Evidence  must  be  clear. — Conduct  may  prevent 
Party's  Rights,  yet  not  be  a  Rescission. — Conditions  for  Avoidance  of 
Contract ;  how  to  be  exercised ;  when  it  revives. — Conditions  for  Rescis- 
sion limited  by  another  for  Compensation. — Bill  praying  a  Rescission,    .  301 

CHAPTER    XXIV. 

OF   THE    LAPSE   OF    TIME. 

Nature  of  Defence. — Time  different  at  Law  and  in  Equity. — 1.  Originally 
of  the  Essence. — By  express  Condition. — Condition  must  be  clear. — Im- 
plied from  Nature  of  Subject-matter  or  Purpose  of  the  Conti'act. — From 
Hardship  of  Delay. — From  other  Parts  of  the  Contract. — Where  the 
Contract  is  unilateral. — 2.  Engrafted  by  Notice. — The  Time  limited  by 
Notice  must  be  reasonable. — What  Notice  requisite. — 3.  Time  as  Laches. 
— Contract  not  mutual. — What  Delay  sufficient. — After  Notice  by  the 
other  Party. — Where  Time  will  not  run. — Contract  substantially  exe- 
cuted.— Pending  Negotiation. — Delay  arising  from  Party  objecting  it. — 
Leaving  Deposit. — Continuing  in  Possession. — Under  Railway  Acts. — 
Mere  Claim. — Waiver  of  Objections  as  to  Time. — Waiver  of  Time  of  an 
Act  no  Waiver  of  the  Act. — Waiver  decided  at  the  Hearing,       .  .  312 


CONTENTS.  xiii 

PART    IV. 

OF  THE  MODE  OF  EXERCISING  THE  JURISDICTION. 
CHAPTER    I. 

OF    TUE    IXSTITUTIOX    OF    THK    SUIT. 

By  Bill.— By  Claim, 327 

CHAPTER    II. 

OF    IXJrXCTIOXS. 

How  connected  with  Specific  Performance. — 1.  Injunction  a  Mode  of  Spe- 
cific Performance  of  ne;rative  Agreements. — Where  the  Court  will  not 
interfere. — To  restrain  Applications  to  Parliament. — Mandatory  Injunc- 
tions.— Limits  of  the  Doctrine. — 2.  Injunction  as  ancillary  to  Specific 
Performance. — Against  Actions  for  Deposit  or  Damages  for  Delay. — 
Against  Suits  in  Matrimonial  Matters. — Against  Third  Parties. — Cau- 
tion of  the  Court,   ........  .32'.> 

CHAPTER    III. 

OF    THE    WRIT    OF    XE    EXEAT. 

As  ancillary  to  Specific  Performance,  .....  337 

CHAPTER    IV. 

OF  RELIEF  SUBSEQUENT  TO  THE  DECREE. 

No  resort  to  any  other  Forum  allowed. — Rescission  of  Contract  after  De- 
cree for  Performance,         .......  338 


PART   V. 

OF  INCIDENTAL  MATTERS. 

CHAPTER    I. 

OF    CONDITION'S    OF    SALE    AND    PARTICULARS. 

Conditions  Part  of  Contract. — How  regarded. — Where  ambiguous. — Sense 
not  extended  by  Implication. — Fraud. — Facts  stated  in  Conditions,         .  ?A0 

CHAPTER    II. 

OF    COMPENSATION. 

Origin  of  Doctrine. — Bill  by  Vendor. — Bill  by  Purchaser. — Compensation 
different  from  Damages.— Material  Part  wanting.— Where  Defect  not 
October,  1858.— 2 


iv     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

material. — Principle  of  Calculation. — Material  Difference  in  the  Subject- 
matter. — For  incumbrances. — Tithes. — Indemnity. — Where  no  Compen- 
sation.— Misrepresentation. — AVhere  no  Data  for  ascertaining  the  Amount. 
— Where  the  Defect  is  patent. — Where  excluded  by  Contract. — For  mat- 
ters subsequent  to  the  Contract. — Deterioration. — Construction  of  Con- 
ditions for  Compensation,  ......  344 


CHAPTER    III. 

OF    REFEREXCE   OF   TITLE. 

Where  Purchaser  is  Defendant. — W^here  Purchaser  is  Plaintiff. — In  respect 
of  what  Contracts. — Where  not  required. — Where  the  Vendor  sells  such 
interest  as  he  has. — Limited  Inquiry. — Lessor's  Title. — Waiver  of  Right. 
— By  Vendor. — By  Purchaser. — Express,  by  Admission. — Implied. — To 
particular  Objections. — 1.  Where  the  Objection  is  known  and  curable. — 
2.  Where  known  and  incurable. — Where  an  Agreement  for  Possession. 
— 3.  Where  the  Objection  is  not  known. — By  Silence  of  subsequent 
Agreement. — Acts  not  a  Waiver. — Waiver  as  to  Lessor's  Title. — Effect 
of  Waiver. — Pleading  Waiver. — Reference  when  made. — At  the  Hear- 
ing.— Before  Hearing,  but  after  Answer. — What  are  Questions  of  Title. 
— Question  suitable  for  the  Hearing. — Reference  before  Answer. — Fifth 
Order  of  9th  May,  1839. — Inquiries  as  to  all  Matters  connected  with 
Title. — When  the  Title  may  be  made  out. — Time  not  granted. — Old 
Title  cured,  or  new  Title. — Form  of  the  Certificate. — Exceptions. — Re- 
ference back. — Title  at  Hearing  on  further  Directions. — What  is  a  good 
Title. — Distinctions  between  Questions  of  Title  and  of  Conveyance. — 
Distinction  between  Evidence  and  Title,  ....  357 


CHAPTER    IV. 

OF   INTEREST,   RENTS,   DETERIORATION,    AND    PAYMENT   INTO   COURT. 

Effect  of  a  Contract  in  changing  the  Property. — 1.  Vendor  in  Receipt  of 
the  Rents,  the  Purchase-money  being  unpaid. — Interest  runs  from  Time 
for  Completion. — Exceptions. — What  will  discharge  the  Purchaser  from 
Interest. — Delay  from  any  Cause  whatever. — Conditions  as  to  Interest 
dependent  on  Conditions  as  to  Abstract. — Interest,  Amount  on  which. — 
Rate. — What  Rents  the  Vendor  is  charged  with. — Deterioration. — Borne 
by  Vendor. — By  Purchaser. — 2.  Vendor  in  actual  Possession. — 3.  Pur- 
chaser in  Possession. — In  Sales  of  Reversionary  Estates. — Payment  of 
Purchase-money  into  Court. — Title  made  out. — Title  not  made  out. — 
Possession  according  to  Agreement. — Possession  under  other  Title. — 
Acts  of  Ownership. — Occupation  Rent. — Procedure,        .  .  .  377 


CHAPTER    V. 

OF   THE    DEPOSIT. 

Power  of  the  Court  over  the  Deposit. — 1.  Where  Vendor  is  Plaintiff. — 2. 
Where  the  Purchaser  is  Plaintiff,  .....  394 


.CONTENTS.  XV 

PART   VI. 

OF  SOME  CONTKACTS  IN  PxYRTICTTLAR. 

CHAPTER    I. 

OF   CONTRACTS    RELATING    TO   CONTINGENT    INTERESTS    AND    EXPECTANCIES. 

Such  Contracts  void  at  Law. — Secus  in  Equity. — Instances. — Circumstances 
under  which  not  enforceable. — Such  Contracts  only  personal,     .  .  397 

CHAPTER    II.  . 

OF   COVENANTS    TO    RENEW. 

Such  Covenants  are  now  performed  by  the  Court. — Requirements. — What 
amounts  to  such  a  Covenant. — Usage  to  renew  not  enough. — Renewals 
by  Trustees. — Diligence  of  Lessee. — In  Ireland,  .  .  .  402 

CHAPTER    II L 

OF  CONTRACTS  OF  PARTNERSHIP. 

When  enforced. — Illegal. — Impossible,         .  .  .  .  .  407 

CHAPTER    IV. 

OF  CONTRACTS  FOR  THE  SALE  OF  SHIPS. 

The  Contract  must  recite  the  Certificate  of  Registry. — Fraud,         .  .  408 

,        CHAPTER    V. 

OF    AGREEMENTS    FOR    SEPARATION    DEEDS. 

Extent  of  Jurisdiction. — There  must  be  a  binding  Agreement. — And  of 
good  Consideration,  .  .  .  .  .  .  .410 

CHAPTER    VL 

OF    AGREEMENTS   TO   COMPROMISE. 

Private. — Of  Suits,  .  .  .  .  .  .  .  .412 

CHAPTER    VIL 

OF    AWARDS. 

Extent  of  the  Jurisdiction. — Where  not  binding  at  Law. — Grounds  of  De- 
fence.— Agreement  unreasonable. — Award  excessive  or  defective. — 
Award  unreasonable,         .......  414 

CHAPTER    VIIL 

OF   AGREEMENTS   TO   REFER   TO   ARBITRATION. 

Court  will  not  enforce  them  affirmatively. — But  may  refuse  other  Relief  un- 
less they  be  substantially  performed,        .  .  .  .  .417 


EDITIONS  OF  WORKS  REFERRED  TO. 


Except  where  otherwise  stated,  the  following  are  the  Editions  of  Works 
referred  to : — 

Dart's  Vendors,  2nd  edition. 
I'^onblanque's  Equity,  5th  edition. 
Haddock's  Chancery  Practice,  2ud  edition. 
Story's  Equity  Jurisprudence,  4th  edition. 
Sugden's  Vendors,  13tb  edition. 


TABLE    OF    CASES. 


The  pages  refered  to  are  those  between  brackets,  [         ]. 


Abbott  V.  Sworder, 

130 

Acland  v.  Gaisford, 

385 

Acton  V.  Acton, 

3 

Adams  v.  Bhxckwall  Rai 

\va 

y  Com- 

panr, 
V.  Brooke, 

9 
91 

V.  Lambert, 

342 

V.  Lindsell, 

82 

V.  "Weare, 

120 

Adderlej'  v.  Dixon, 

16 

Agar  V.  Macklew, 

96 

417 

Ainslie  v.  Medlycott, 

83 

193 

Akhurst  v.  Jackson, 

267 

Aldborough  (Earl  of)  v. 
Alder  v.  Ward, 

Tryc, 

125 

406 

Alexander  v.  Godwin, 

312 

V.  Wellington 

Allen  V.  Bennet, 

(Duke  of), 
IGl 

397 
165 

V.  Hilton, 

321 

Allej-  V.  Deschamps, 
Allison  V.  Monkwearmouth, 

321 
17 

Alvanley  v.  Kinnaird, 

215 

Ambrose  v.  Xott, 

25 

Anderson  v.  Higgins, 
Andrew  v.  Andrew, 

359 
373 

Anon.  V.  Skelton. 

368 

V.  Walford, 

33,  34 

0  TTnrn     A  rmT     1  1 

327 
18 

297 

1   Alnrl    Ch     111     n 

1  Salk.  no. 

cited  in  Kimberly  v 

Je 

inings, 

6  Sim. 351, 

330 

2  Ves.  Sen.  G29, 

18 

6  Ves.  24, 

108 

Anson  (Lord)  v.  Hodges 

V.  Towgood, 

Anspach  (Margravine  of 

)   ^ 

.  Xoel, 

3G4, 

394 
264 

365 

Arglasse  v.  Muschamp, 
.\rmiger  v.  Clarke, 

25 
133 

Arundell  (Lady)  v.  Phipps, 
Ashton  V.  Wood, 

345 

14 
358 

Ashworth  v.  Mounsey, 
Askew  V.  Millington, 

360 
413 

Atkinson  v.  Ritchie, 

143, 

269 

V.  Smith. 

239 

Att.-Gen.  v.  Christchurcii,  388 

V.  Day,  138,  170,  171 

V.  Manchester  and  Leeds 

Railway  Company,  331 
V.  Norwich  (Corporation 

of),  154 

V.  Parnther,  73 

V.  Sitwell,  229 

Attwood  V. ,  412 

V.  Barham,  334 

V.  Small,  192,196,210 

Aubin  V.  Holt,  18,  145 

Avarine  v.  Brown,  374,  375 

Ayles  V.  Cox,  250,  350 

Aylesford's  (Earl  of)  case,  180 

Aylett  T.  Ashton,  72,  351 

AylifFe  v.  Tracer,  83 

Backhouse  v.  Mohun,  137,  305 

Baden  v.  Pembroke  (Countess  of),      47 
Baglehole  v.  Walters,  251 

Bagshawe  v.  Eastern  Counties  Rail- 
way Company,  154 
Bailey  v.  Collett,  389 
Baker  v.  Paine,  223 
Baldey  v.  Parker,  239 
Baldwin    v.  Society    for    Diffusing 

Useful  Knowledge.  245 

Ball  V.  Coggs,  22 

V.  Storie,  215 

Ballard  v.  Way,  250 

Balmanno  v.  Lumley.  :;51,  369 

Bannerman  v.  Clarke,  384 

Barker  v.  Hill,  47 

V.  Hodgson,  1 13,  269 

Barkworth  v.  Young,  60,  156,  159,  161, 
168,  169,  297,  298 
Barnett  V.  Wheeler,  101 

Barnley  v.  Eastern  Counties  Rail- 
way Company.  327 
Barnwell  v.  Harris,  257 
Barr  v.  Gibson,  263 
Barraud  v.  Archer,  350 
Barret  v.  Blagravc,  321,  330 
Barrett  v.  Ring,  114 
Barrington,  Ex  parte,                       1.  363 


xviii     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Barrington  v.  Horn, 
Bartlett  v.  Purnell, 
Basevi  v.  Serra, 
Basket  t.  Basket, 
Baskett  v.  Cafe, 
Bateman  v.  Murray. 
Baxendale  v.  Scale, 
Baxter  v.  Biirfield, 

V.  ConoUv. 

V.  Taylor!^ 


108. 


293 

164 

278 

300 

158 

405 

110.  215 

50 

17 

36 


Bayley  v.  Leominster  (Corporation 

of),  404 

Bayly  v.  Merrel,  201 

— —-  V.  Tyrrell,  57 

Baynham  v.  Guy's  Hospital.     314,  403, 

404 
Beales  v.  Rokeby  (Lord),  47 

Beardmer   v.    London   and    North 

Western  Railway  Company,  271 

Beatson  v.  Nicholson,  83,  158,  289 

Beaufort  (Duke  of)  v.  Glynn,    335,  371 
Beaumont  v   Dukes,  270 

Beckley  v.  Newland,  3,  398 

Bedford  (Duke  of)  v.  British  Mu- 
seum (Trustees  of  the),  118 
Beech  v.  Ford,  8 
Beeston  v.  Stuteley.                     142,  292 
Bell  y.  Howard,     "              110,  135,  305 

y.  O'Reilly,  338 

Bellringer  y.  Blagraye,  114 

Beman  V.  Rufford,  57,154 

Bennet  y.  Vade,  73 

Bennet  College  v.  Carey,  371 

Bennett  y.  Fowler,        '      100,  138,  358 

V.  Rees,  371 

Benson  v.  Lamb,  318 

Bentley  y.  Crayen,  248 

Berkeley  y.  Dauh,  375 

V.  Hardy,  41 

Berry  v.  Young,  312 

Bettesworth  y.  St.  Paul's  (Dean  and 

Chapter  of),  4,  143,  295 

Bickner  y.  Milner,  373 

Bigg  y.  Strong,  164 

Bilbie  y.  Lumley,  224 

Binks  y.  Rokeby  (Lord),  351.  355,  386, 

388 
Birce  y.  Bletchley,  170 

Birch  V.  Joy,  388 

V.  Podmore,  383 

Bird  y.  Boulter,  165 

Blachford  y.  Kirkpatrick.  181,  366 

Blackburn  y.  Stace,  393 

Blacklow  y.  Laws,  261,  362 

Blagdcn  y.  Bradbear,  99,  158,  170 

Blakemore  y.  Glamorganshire  Ca- 
nal Nayigation,  333 
Blaydcs  v.  Calyert,  337 
Bleakley  v.  Smith,  161 
Blore  V.  Sutton,  98,  163,  177,  395 
Blosse  V.  Clanmorris  (Lord),  261 
Blount  y.  Blount,  389 
Blundell  y.  Brettargh,  96,  414 
Blyth  y.  Elmhirst,                        368,  369 


Boardman  y.  Mostyn,  282,  286,  334 
Boehm  y.  "Wood,  337,  368 
Bold  y.  Hutchinson,  84 
Bolingbroke's  (Lord)  case,  138 
Bonner  y.  Johnston,  391,  392,  393 
Bonnet  y.  Sadler,  54 
Booth  V.  Pollard,  20 
Boothby  y.  Walker.  393 
Borell  y.  Dann,  125,  130 
Borneman  y.  Tooke,  312 
Bostock  V.  North  Staffordshire  Rail- 
way Company,  150 
Boswell  y.  Mendham.  259 
Bower  y.  Bright,  344 

V.  Cooper,  99,  130 

-: V.  Cator,  157 

Boyes  y.  Liddell,  368,  370 

Boys  y.  Ayerst,  79,  81,  82,  137 

Bozon  y.  Farlow,  .                17,  1« 

Brace  v.  Wehnert,  20 

Bradley  v.  Munton,  357 

Bramley  v.  Alt,  209,  210 

V.  Teal,  392 

Braybrooke  (Lord)  y.  Inskip,   255,  371, 

374 
Brealey  v.  Collins, 
Brennan  y.  Bolton, 
Brewster  v.  Clarke, 
Bridger  y.  Rice, 
Bridges  v.  Hitchcock, 
V.  Robinson, 


8,  12, 


Bridgman  y.  Green, 

Bright  y.  North, 

Brinkley  v.  Hance, 

Briscoe  v.  Brett, 

Bristow  V.  Wood, 

Brocklebank  v.  Whitehayen  June 

tion  Railway  Company, 
Bromley  y.  Jefferies, 
Brooke  y.  Anon., 

V.  Champernowne, 

y.  Garrod, 

V.  Hewitt, 


197 
176 
408 
113 
403 
384 
110 
154 
111 
368 
261 


9 

94,  134 

373 

379,  389 

321 

58,  280 


(Lord)  y.  Rounthwaite,  197,  353 

39 

49 

48 

404 


Brookes  y.  Whitworth  (Lord), 

Broome  v.  Moncke, 

Brown  v.  Raindle, 

y.  Tighe,  402,  40 


Browne  V.  London  Necropolis  Com 

pany, 
V.  Warner, 


Brumfit  V.  Merton, 
Bryan  v.  Wooley, 
Bryant  v.  Busk, 
Buck  y.  Lodge, 

V.  Whelley, 

Buckhouse  y.  Crosby, 
Buckland  y.  Hall, 
Buckle  y.  Mitchell, 
Buckmaster  v.  Ilarrop.  48,  137, 164,  171. 
177,  183.  238 
Bullock  V.  Bullock,  48 

Bunn  y.  Guy,  18 

Burgess  y.  '\Vheate,  396 


52 

291 

342 

293 

99,  281,  394 

393 

293 

305 

281, 334 

136,  258 


TABLE    OF    CASES. 


Burke  v.  Dawson, 

V.  Smyth, 

Burned  v.  Luing, 
Burnell  v.  Brown, 
Burroughs  v.  Oakley, 
Burrowes  v.  Lock, 
Burton  v.  Todd, 
Butcher  v.  Stapely, 
Butler  v.  JIulrihill, 

v.  Portarlington 

V.  Powis, 

Butterfield  v.  llcath, 
Buxton  V.  Lister,      4, 
Byrne  v.  Acton, 


258 

323 

337 

363,  38-i 

392, 393 

130,  193 

378 

180 

112 

394,406 

28,  137 

258 

13,  14,  18,  19,  90 

114 


364, 


:Lord), 


Cadman  v.  Horner,   '  203 

Calcraft  v.  Roebuck,  363,  384 

Caledonian    and    Dumbartonshire 

Junction    Railway   Company   v. 

the  Magistrates  of  Helensburgh,   61, 

64,  65 

Callaghan  v.  Callaglian.  103,  128 

Calverley  v.  Williams.  221,  222 

Campbell  v.  Fleming,         308,  309,  364 

V.  Ingilby,  44,  278,  279 

V.  Leach,  134 

V.  London  and  Brighton 

Railway  Company, 
Candler  v.  Carden, 
Cann  v.  Cann, 
Cannel  v.  Buckle, 
Cappur  r.  Harris, 
Carey  v.  Stafford, 
Carletonv.  Leighton, 
Carne  v.  Mitchell, 
Carolan  v.  Brabazon.  247, 

Carrodus  v.  Sharp, 
Carter  v.  Carter, 


349, 


316 
18 
355 
3,  5 
11 
293 
401 
291 
294,  306 
379 
267 


V.  Ely  (Dean  ofj,    306,  315,  317 


Casamajor  v.  Strode 
Cass  V  Ruddle, 
Cator  V.  Pembroke  (Earl  of) 
Cattell  V.  Corrall, 
Causton  v.  Macklew, 
Chadwick  v.  Maden, 
Chamberlain  v.  Lee, 
Chambers  v.  Gauseu. 

V.  Griffiths, 

Champernowne  v.  Brooke, 
Champion  v.  Plumnier, 
Cheslyn  v.  Dalby, 
Chester  v.  Urwick, 
Chesterman  v.  Mann, 
Chichester  v.  Macintyre, 
Child  V.  Abingdon  (Lord), 


238 
267 
355 
260 
258 
34,  69 
371,  372 


•,^07, 


137.  IJ 


404 

238 

389 

94 

418 

173 

135,  136,  405 

94 

389 

168,  183 

156 

7,  29,  31 

17 


V.  Comber, 

V.  Godolphin, 

Chilliner  v.  Chilliner 
Chissum  v.  Dewes, 
Clapham  v.  Shilito,  197 

Claringbould  v.  Curtis,  13 

Clark  V.  Glasgow  Assurance  Com- 
pany, 20 
Clarke  v.  Elliott.                                 391 


Clarke  v.  Faux,  311 

V.  Grant,  172,  213,  219,  232 

V.  Moore,        •  219,  302,  322 

V.  Price,  245 

V.  Wilson,  391 

Clarkson  V.  Hanway,  llo 

Clayton  v.  Ashdown,  133 

V.  niingwortb,  7 

V.  Newcastle  (Duke  of),  291,  401 

y.Ntigent  (Lord),  92 

Cleaton  v.  Gower,      123,  138,  141,  345 
Clegg  V.  Edmondson,  315,  316,  324 

Clerk  V.  Wright,  166,  186 

Clermont  (Viscount)  v.  Tasburgh,    204, 

352 

Clifford  V.  Turrell,  11,  186,  232 

Clinan  v.  Cooke,    93,  98,  164,  166,  182, 

183,  213,  229,  230,  231 


Clive  V.  Beaumont, 

79, 

367, 

368 

Clowes  V.  Higginson 

217 

Cockell  T.  Taylor, 

12S 

Cockerell  v.  Cholmeley, 

224 

Coffin  V.  Cooper, 

371 

Cohen  v.  Wilkinson, 

154 

Cole  V.  Sims, 

27,31,  59 

V.  White, 

186 

Coleman  v.  Eastern  Counties  Rail- 

way Company, 

151, 

153 

V.  Upcot, 

81, 

137 

Coles  V.  Trecothick, 

129, 

162, 

164, 

165, 
267 

CoUett  V.  Hever, 

39 

Collier  v.  Brown, 

130 

V.Jenkins, 

49, 

344, 

350 

Collins  V.  Plumb, 

17 

V.  Plummer. 

134 

331 

Colt  V.  Netterville, 

12 

Colton  V.  Wilson, 

260 

Columbine  v.  Chiches 

ter, 

290 

Colyear  v.  Mulgrave 

(Coi 

ntess  of). 

41 

Colyer  v.  Clay, 

172 

Const  V.  Harris, 

303 

Cook  V.  Field, 

56 

397 

V.  Richards, 

235 

Cooke  V.  Clay  worth. 

112 

V.  Cooke, 

39 

V.  Oxlee, 

80 

V.  Tombs, 

186 

Cookes  V.  Mascall, 

87 

Coombs  V.  Mansfield 

408 

Cooper  V.  Deune, 

253 

V.  Smith, 

168 

Coothv.  Jackson,  96 

108 

143, 

158, 

178, 
189 

Cope  V.  Parry, 

39 

Copper  Mining  Comp 

V.  Beach 

,  280,404 

Corder  v.  Morgan, 

32 

Cornfoot  v.  Fowke, 

193, 

210 

Corrall  v.  Cattell, 

360 

Coslake  v.  Till, 

17 

315 

317 

Cosser  v.  Collinge, 

100 

Coster  V.  Turner, 

320 

Costigan  v.  Hastier, 

118, 

311 

Cotton  V.  Wilson, 

47 

XX       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Counter  v.  Macpherson,     2C5,  275, 

Couturier  v.  Hastie, 

Cowley  V.  Watts,  •  101, 

Cowpe  V.  Bakewell,  383, 

Cox  V.  Middleton,  98, 

Cripps  V.  Jee, 

Crockford  v.  Alexander, 

Croftonv.  Ormsbj',       58,  278,  316, 

Crofts  V.  Middleton, 

Crompton  v.  Melbourne  (Lord), 

Croome  V.  Lediard,  225, 

Crosbie  v.  Tooke,  51,  53,  280, 

Cross  V.  Sprigg, 

Crosse  v.  Keene,  239, 

V.  Lawrence,  239, 

Crow  V.  Rogers, 

Crowder  v.  Austin, 

Croyston  v.  Banes, 

Cruse  V.  Nowell, 

Crutchley  v.  Jerninghani,  390, 

Crutwell  V.  Lye,  17, 

Cubitt  V.  Blake,  278, 

Cud  V.  Rutter, 

Cuddee  v.  Rutter, 

Cudden  v.  Cartwright, 

Curling  v.  Flight,        100,  358,  369, 

Curtis  V.  Buckingham  (Marquis  of). 

Cutler  V.  Simons,  365,  392, 

Cutts,  Ex  parte,  1, 

V.  Thodey,  33,  308, 

Da  Costa  v.  Davis, 
Dakin  v.  Cope, 
Dalby  v.  Fallen, 
Dale  V.  Hamilton, 

V.  Lister, 

Daniel  v.  Adams, 
Daniels  v.  Davison, 
Darbey  v.  Whittaker, 
Darlington  v.  Hamilton, 
Davenport  v.  Bishopp, 
Davies  v.  Cooper, 

V.  Fitton, 

Davis  V.  Abraham, 

V.  Hone,  2,119,220,273, 

V.  Jones, 

V.  Marlborough  (Duke  of), 

V.  Symonds,  106, 

Davy  V.  Barber,  266, 

Dawes  v.  King, 
Dawson  v.  Brinckman, 
Day  V.  Newman, 
Deane  v.  Izard, 

V.  Rastron,  111, 

De  Medina  v.  Norman, 

Denne  v.  Light, 

Denton  v.  Stewart,  2ft0, 

De  Rothschild  v.  Royal  Mail  Steam 

Packet  Company, 
Devenish  v.  Brown,  292, 

DevercU  v.  Bolton  (Lord), 
De  Visme  v.  De  Visme,       379,  381, 
Dick  V.  Donald, 
Dictrichscn  v.  Colburn, 


237, 


17,  95 

350, 

43,  44, 


326 
263 
160 
387 
202 
226 
335 
322 

73 
355 
239 
281 

86 
251 
251 

41 
209 
157 
342 
393 
331 
320 

11 
292 
114 
373 
335 
393 
170 
325 

297 
387 
371 
174 
138 
293 
93 
,  96 
360 
242 
208 
229 
208 
294 
293 
125 
305 
389 
194 
366 
129 
173 
127 
292 
124 
395 

383 
371 
366 
383 
343 
246 


Dixon  V.  Astley,  365,  392,  393 

Dobell  V.  Hutchinson,         167,  169,  347 

V.  Stevens,  202 

Dodseley  v.  Kinnersley,  4 

Doe  d.  Gray  v.  Stanion,  99 

Lambourne  v.  Pedgriph,         160 

Lyster  v.  Goldwin,  91 

Mann  v.  Walters,  91 

Nash  V.  Birch,  307 

Williams  v.  Evans,  56 

Dolman  v.  Nokes,  208 

Dojoret  v.  Rothschild,  4,  8,  11,  315 

Doo  V.  London  and  Croydon  Rail- 
way Company,  9 
Doogood  V.  Rose,                                274 
Dorison  v.  Westbrook,                           1 2 
Douglass    V.    London    and    North 

Western  Railway  Company,     10,  311 
Dowell  V.  Dew,  51,53,55,58,180 

Downs  V.  Collins,  99,  241 

Drewe  v.  Corp,  349 

V.  Hanson,  347 

Drummond  v.  Bolton  (Duke  of),        298 
Drysdale  v.  Mace,  201,  341 

Dii  Biel  v.  Thompson,  89,  165 

Duke  V.  Andrews,  79 

V.  Barnett,  359 

V.  Exon  (Mayor  of),  51 

Duncan  v.  Topham,  82 

Duncuft  V.  Albrecht,  12 

Dundass  v.  Dutens,  172,  184 

Dunlop  V.  Higgins,  82 

Durham  (Dean  of)  Ex  parte,  384 

Dutton  V.  Poole,  45 

Dyas  V.  Cruise,  58,  140,  164 

Dyer  v.  Hargrave,  200,  201,  248,  249, 

354,  387 
Dykes  v.  Blake,  239,  340,  348 

Dyson  v.  Hornby,  379,  383 

Eads  V.  Williams,  97,  316,  321,  325 

Early  v.  Garrett,  192,  251 

East  Anglian  Railway  Company  v. 
Eastern  Counties  Railway  Com- 
pany, 150, 151 
East  India  Company  v.  Donald,         190 
East  India  Company  v.  Nuthumba- 
doo  Veerasawmy  Moodellj^,  179,  186, 

188 
East  India  Company  v.  Vincent,  23 

Eastern    Counties    Railway   Com- 
pany V.  Hawkes,  10,64,  150,  152,  154 


Eaton's  case, 
Eaton  V.  Laughter, 
V.  Lyon, 


405, 


297 
297 
406 
334 


Echliff  V.  Baldwin, 
Edinburgh,  Perth,  and  Dundee  Rail- 
way Company  v.  Philip,  288 
Edwards  v.  Applebee,  60 

V.Burt,  125 

V.  Grand  Junction  Railway 

Company,  61,  121 

V.  Edwards  v.  McLeay,  191,  207 

V.  Warwick  (Countess  of;,     43 


TABLE    OF    CASES. 


XXI 


Egerton  v.  Browulow  (Lord), 

V.  Jones, 

V.  Mathews, 

Eldridge  v.  Porter, 
Ellard  v.  Llandaff  (Lord), 
Ellis  V.  Colman, 
Elmore  v.  Kingscote, 
Els  worthy  v.  Bird, 
Ely  (Dean  of)  v.  Stewart, 
Emery  v.  Grocock, 

V.  Pickering, 

V.  Wase, 

Emmerson  v.  Heelis, 
Emraett  v.  Dewhurst, 
England  v.  Curling, 
Enraght  v.  Fitzgerald, 
Errington  v.  Aynesly, 
Esdaile  v.  Stephenson,  350, 

Esposite  V.  Bowden, 
Evans  v.  Edmonds, 

V.  Harris, 

V.  Jackson, 

V.  Richardson, 

V.  Walshe, 


Eyre  v.  Menro, 
Eyston  v.  Simmons, 
Eyton  V.  Dicken, 


143 

373 

161 

368 

111 

290 

94 

411 

123 

257 

369 

293,  416 

164,  238 

229 

303,407 

378,  389 

19,  294 

374,  378, 

381 

143, 269 

192 

157 

39 

145 

117 

60 

372 

258 


Faine  v.  Brown,  121 

Fane  v.  Spencer,  100 

Featherstonaugh  v.  Fenwick,  53 

Fellmakers'  Company  v.  Davis,  41 

Fellowes  v.  Gwydyr,  (Lord)  51,  54,  203 
Fells  V.  Read,  14 

Fenelly  v.  Anderson,  134 

Fenning  v.  Humphery,  25 

Fenton  v.  Browne, 
Ferguson  v.  Tadman, 
Fevcrsham  (Lord)  v. 
Fewster  v.  Turner, 
Field  V.  Hutchinson, 
Fife  V.  Clayton, 
Fildes  V.  Hooker, 
Finch  V.   Salisbury   ( 

Hawtrey, 
Firth  V.  Greenwood, 
Fleetwood  v.  Green, 
Fletcher  v.  Fletcher, 
Flight  V.  Barton, 

r.  BoUand, 

V.  Booth, 

Flint  V.  Brandon, 

V.  Woodin, 

Flood  V.  Finlay, 
Floyd  V.  Buckland, 
Fludyer  v.  Cocker, 
Foligno  V.  Martin, 
Ford  V.  Compton, 

V.  Heely, 

Fordycc  v.  Ford, 
Forsyth  v.  Manton, 
Fortescue  v.  Hennah. 
Foster  v.  Deacon. 


197,  393 

346,  386 

Watsou, 

276 

272 

156 

217 

100, 

351,  373 

(Earl  of) 

and 

27,58 

163, 321 

357 

410 

100,  202 

133,  137 

349 

20 

203, 

209,  364 

55 

180 

387 

339 

58,  338 

32 

320,  335, 

349,  363 

413 

60 

355,  386 

Foster  v. 


v, 


Hall, 
Mentor 


Life 


Company, 
Foubert  v.  Trust, 
Fowle  V.  Freeman, 
Fox  V.  Birch, 

V.  Mackreth, 

Frame  v,  Dawson, 
Francis  v.  Wigzell, 
Frank  v.  Basnett, 

v.  Frank, 

Franklin  v.  Brownlow 
Franklyn  v.  Lamond, 

V.  Tuton, 

Franks  v.  Martin, 
Eraser  v.  Wood, 
Frederick  v.  Coxwell, 
Freebody  v.  Parry, 
Freeman  v.  Baker, 

V.  Cooke, 

Freer  v.  Hesse. 
Freme  v.  Wright, 
French  v.  Macale, 
Frost  V.  Beaven, 

V.  Moulton, 

Fulham  v.  McCarthy, 
Fuller  v.  Wilson, 
Furnival  v.  Crew, 


(Lord), 


174 
Assurance 

84 

24 

137, IGO 

390 

128,  208 

176,183 

72 

339,  355 

107 

280 

239 

21 

90,  103 

372 

292,  293, 295 

391 

192 

84 

258 

101 

26,  29,  30 

73 

159 

33 

193,  210 

59,  402,  403 


Gabriel  r.  Smith,  342 
Gage  V.  Acton,  3 
V.  Newmarket  Railway  Com- 
pany, 150,  288 
Gale  V.  Lindo,  83 
Galton  V.  Emuss,  47 
Gardner,  Ex  parte,  325 
Garrard  V.  Grinling,  218 
Gartside  v.  Isherwood,  110 
Gaskarth  v.  Lowther  (Lord),  76 
Gaston  v.  Frankum,  72,  165,  368 
Geddes  v.  Wallace,  303 
Gedye  v.  Montrose  (Duke  of),  25 
Gee  V.  Pearse,  323 
Gell  V.  Watson,  391 
Gerrard  v.  O'Reilly,  30 
Gervaisv.  Edwards,  240,  243,  417 
Gibbins  v.  North-Eastern  Metropo- 
litan District  Asylum,  79,  160,  370 
Gibbons  v.  Gaunt,  224 
Gibson  v.  Carruthers,                           53 

V.  Clarke,  370,  390,  391 

V.  D'Este,  191, 195,  201,  207, 340 

V.  Goldsmid,  274 

V.  Paterson,  313 

V.  Spurrier,  238 

Gilfillan  v.  Henderson,  18 

Glengal  (Lord)  v.  Barnard,  159,  164, 165 
Glengal  (Lord)  v.  Thynne,  159,  164 
Godson  V.  Turner,  358 

Goilmere  v.  Battison,  60 

Goman  v.  Salisbury,  305 

Gompertz  r.  Anon.,  369 

Gooday  v.  Colchester,  etc.,  Railway 
Company,  03,  64 


xsii     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


169 
115 
369 

219 
283 

98 
242 
169 
306 
116 

97, 
417 

60 
360 
354 
242 


5*7 


102, 
246 


Goodmnn  v.  Griffiths,  94, 

Goodwin  v.  Fielding,  58, 

Gordon  v.  Ball, 

Gordon  (Lord)  v.  Hertford  (Mar- 
quis of), 
Gordon  v.  Smart, 

T.  Trevelyan, 

Goring  v.  Nash,  43, 

Gosbell  V.  Archer,  162,  164, 

Goss  V.  Nugent  (Lord),  305, 

Gould  V.  Kemp, 
Gourlay  v.  Somerset  (Duke  of),  96, 

Golymer  v.  Paddiston, 

Graham  v.  Oliver,  141, 

Grant  v.  Munt,  200, 

Granville  v.  Betts, 

Great  Northern  Railway  Company  v. 
Eastern  Counties  Railway  Com- 
pany, 

Great  Northern  Railway  Company  v. 
Manchester,  Sheffield  and  Lin- 
colnshire Railway  Company, 

Great  Western  Railway  Company  v. 
Birmingham  and  Oxford  Junc- 
tion Railway  Company,  138,  244,  292, 

334 
Great  Western  Railway  Company  v. 

Rushout,  153 

Greaves  v.  Wilson,  341 

Green  v.  Folgham,  407 

V.  Low,  247,  274 

V.  Pulsford, .  260 

T.  Smith,  290 

Greenaway  v.  Adams,  395 

Greenhalgh  v.  Manchester  and  Bir- 
mingham Railway  Company,   63,  296 
Greenwood  v.  Churchill,  381 

Gregg  V.  Wells,  84 

Gregory  v.  Mighill,  180,  189 

T.  Wilson,        282,  283,  285,  286 

Gregson  v.  Riddle,  314 

Grenninghara  v.  Ewer,  300 

Grev  V.  Hesketh,  292 

Griffin  v.  Griffin,  275 

Griffiths  V.  Spratley,  128,  130 

Grove  v.  Bastard,  260 

Groves  v.  Groves,  25 

Guest  V.  Homfray,  322 

Gunter  V.  Halsey,  171,176 

Gwillim  V.  Stone,  395 

Gwynn  v.  Lcthbridge,  217 

Haberdashers'  Company  v.  Isaac,      110 

Halfpenny  V.  Fotherley,  87 

Hall  V.  Betty,  100 

V.  Cazenove,  312 

V.  Hall,  78 

V.  Hardy,  293,  414 

V.  Laver,  35, 302, 365 

V.  Warren,  73,  97 

Hallett  V.  Middleton,  291 

Halsey  v.  Grant,  347,  350 


Hamilton  v.  Grant,  124,  127,  134 

Hammersley  v.  Du  Biel,  83,  89, 169,  185 
Hancock  v.  Hancock, 
Hanks  v.  Palling, 

v.  Pulling, 

Harding  v.  Cox, 

Hare  V.  Burges,  280,403, 

V.  Shearwood, 

Harford  v.  Furrier,  265, 

Hargreaves  v.  Wright, 

Harnett  v.  Yielding,  105,  113,  114, 


278 
359 
263 

54 
404 
226 
387 

40 

139, 

403 

320,  322 

47 
202,  204 
225 
331 
259 
305 
277 
398 
136 
312 


Harrington  v.  Wheeler, 
Harris  v.  Ingledew, 

V.  Kemble,  194, 

V.  Loyd, 

Harrison  v.  Gardner, 
Hartley  v.  Smith, 
Harvey  v.  Grabham, 
Harvy  v.  Ashley, 
Harwood  v.  Tooke, 
Hatton  V.  Grey, 
Havelock  v.  Geddes, 
Hawkes  v.The  Eastern  Counties  Rail- 
way Company,    7,  117,  121,  135,  288, 

292 
Hawkins  v.  Holmes,  162, 186 

Haydon  v.  Bell,  362 

Haywood  v.  Cope,  93,  108,  117 

Heap  V.  Tonge,  107 

Heaphy  v.  Hill,  322 

Hearne  V.  Tenant,  314 

Heathcote   v.   North    Staffordshire 

Railway  Company,  331 

Helsham  v.  Langley,  110,  215,  220 

Hemming  v.  Mayo,  328 

Henkle  v.  Royal  Exchange  Assur- 
ance Company,  222,  223 
Heriot's   Hospital    (Feoffees  of)  v. 

Gibson,  271 

Hern  v.  Nichols,  210 

Hersey  v.  Giblet,  58,  98 

Hertford  (Marquis  of)  v.  Boore,         321 
Hervey  v.  Audland, 
Hesse  v.  Briant, 
Hibbert  v.  Hibbert, 
Hibblethwaite  v.  M'Morine, 


Hick  V.  Phillips, 
Higgins  V.  Senior, 
Higginsou  v.  Clowes, 
Hill  V.  Barclay, 
V.  Buckley, 


25 

111 

18 

292 

350,  394 

67,  70 

214,  218,  228 

283 

113,  138,  349 


250, 


V.  Gomme,  41,  42,45,46,  134,301, 
305,  306 


Hills  V.  Croll, 
Hincksman  v.  Smith, 
Hinton  v.  Hinton, 
Hipwell  V.  Knight, 
Hircy  v.  Birch, 
Hitchcock  V.  Giddings, 
Hitchens  v.  Landor, 
Hobbs  v.  Hull, 
Hobson  v.  Trevor, 
Hodges  V.  Blagrave, 


3U 


246 

125 

47,  48 

314,  325 

18 

262 


222 


411 

27,  398 

280,  404 


TABLE    OF    CASES. 


Hodges  V.  Horsfivl],  lo:! 

Hodgkinsou  v.  Wyatt,  235 

Hodgson  V.  Hutchenson,         80,  82,  169 
Hoggart  V.  Scott,  133,  136,  372 

Holden  v.  Hayn,  35',  302 

Holland  v.  Eyre,  78 

Hollis  V.  Whiteing,  173 

Holman  v.  Johnson,  144 

Holmes  v.  Eastern  Uounties  Railway 

Company,  105,  285 

Holt  V.  Holt,  15,  48 

Holyland,  Ex  parte,  73 

Honeyman  v.  Marryatt,        81,  160,  314 
Hook  V.  Kinnear  and  Philips,  41 

Hooper,  Ex  parte,  176,  183 

Hopcraft  v.  Hickman,  94 

Hope  V.  Hope,  24,  134,  247,  410 

Horniblow  v.  Shirley.  350 

Horsfall  v.  Garnett,'  77 

Hosier  v.  Read,  157 

Hotham  v.  East  India  Company,       274 


Houghton  V.  Lees, 
Howard,  In  re, 

V.  Braithwaite, 

V.  Hopkins, 

V.  Hudson, 

V.  Knightly, 

V.  Okeover, 

Howell  V.  George, 

V.  Howell, 

Howland  v.  Norris, 
Hoy  V.  Smythies, 
Hoyle  V.  Livesey, 
Hubert  v.  Treherne, 

V.  Turner, 

Iluddleston  v.  Briscoe, 
Hudson  V.  Bartram, 
Hughes  V.  Morris, 

V.  Parker, 

V.  Statham, 

Hulme  V.  Tenant, 
Hume  V.  Bentley, 
Humphreys  v.  Hollis, 

V.  Home, 

Hunter  v.  Daniel, 
Hyde  v.  Skinner, 

V.  Watts, 

V.  White, 

V.  Wrench, 

V.  Wroughton, 


25,  399 

48 

163 

26,  28,  58 

84 

342 

156 

216,  292,  293 

385 

347,  379 

311 

268 

162 

162 

160 


7i 


314,  325,  334 

408 

99 

407 

72 

361 

32,72 

338 

274,  309 

403 

307 

399 

80 

370 


Iggulden  V.  May,  402,  403 

Ilchester  (Lord),  Ex  parte,  305 

Inge  V.  Birmingham,  Wolverhamp- 
ton and  Stour  Valley  Railway 
Company,  10,  305 

Inge  V.  Lippingwall,  305 

Irnham  (Lord)  v.  Child.  54,  22G 

Isherwood  v.  Uldknow,  35 

Ives  V.  Metcalfe,  415 


Jackson's  case, 
Jackson  v.  Cocker, 


58 
12 


Jackson  v.  Jackson,  9T 

V.  Lever,  267 

V.  Lowe,  .  167 

V.  Pesked,  36 

V.  Petrie,  25 

V.  Saunders,  406 

V.  Sedgwick,  303 

Jalabert  v.  Chandos  (Duke  of),     38,  55 
James  v.  Shore,  23.s 

Jameson  v.  Stein,  84 

J  e  if rcy  s  v .  Je  flfrey s ,  25 

Jenkins  v.  Hiles,  357,  361,  362 

V.  Parkinson,  337,  345,  395 

Jennings  v.  Broughton,  196,  199 

V.  Hopton,  370 

Jervoise  v.  Northumberland  (Duke 

of),  254,  255 

Jeudwine  v.  Agate,  28 

v.  Alcock,  373 

Job  V.  Bannister,  404 

Johnson  v.  King,  79 

V.  Legard,  38,  48,  113,  136,  25a 

V.  Nott,  110 

V.  Shrewsbury  and  Birming- 
ham Railway  Company,  23,  57, 
134,  145 

343 
36 

142 

27,  311 

CO,  299 


V.  Smiley, 

Johnstone  v.  Hall, 
Jones  T.  Evans, 

V.  Green, 

V.  How, 

V.  Jones, 

V.  Lees, 

V.  Littledale,    • 

V.  Martin, 

V.  Mudd, 

V.  Roe, 

Jordan  v.  Sawkins, 
Joynes  v.  Statham, 
Jumpson  V.  Pitcher, 


19 

116 

69 

60 

378 

3,  397 

54,  157,  226,  300 

216,  231 

375 


Keeble  v.  Dennish,  327 

Keisselbrack  v.  Livingstone,  235 

Kemble  v.  Kean,  103,  245 

Kemeys  v.  Proctor,  164 

Kendall  v.  Beckett,  125,  395 

Kennedy  v.  Lee,  76,  93 

Kenney  v.  Wexham,  8,  11,  268 

Kensington  (Lord)  v.  Phillips,      91,  98 
Kenworthy  v.  Schofield,  164 

Ker  v.  Clobery,  351 

Kerneys  v.  Hansard,  110 

Kien  v.  Stukeley,  131 

Kimberley  v.  Jennings,  124,  245 

Kine  v.  Balfe,  ISO 

King  V.  King,  311,  391 

T.Wilson,  318,324,349,354 

Kingley  v.  Young,  69 

Kintrea  v.  Preston,  lOO 

Kirk  V.  Bromley  Union,  22,179 

Knatchbull  v.  Grueber,     282,  284,  347. 
348,  366 
Knight  V.  Crockford.  ]62 

Knollys  v.  Hewitt,  58 


xsiv     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Knowles  v.  Haugliton, 


407 


Lacey,  Ex  parte,  136 

Lachlaa  v.  Reynolds,  352 

Lacou  V.  Mertins,  47,  171,  183 

Lamprell  v.  Bellericay  Union,  312 

Lancashire   and  Carlisle    Railway 
Company  v.  North  Western  Rail- 
way Company,  148,  331,  332 
Lane  v.  Debenham,  309 

V.  Newdigate,  21,  333 

Lanesborough  (Lady)  v.  Ockshott,  305 
Langford  v.  Pitt,  371 
Lassence  v.  Tierney,  184 
Laughter's  case,  297,  298 
Lawder  v.  Blachford,  116,  117 
Lawrenson  v.  Butler,  139 
Lawton  v.  Campion,  107 
Laythoarpe  v.  Bryant,  159,  161 
Leake  v.  Morrice,  173 
— —  V.  Morris,  173 
Lecbmere  v.  Brazier,  320 
Lees  V.  Nuttall,  69 
Legal  V.  Miller,  217 
Le  Grand  v.  Whitehead,  368 
Leigh  (Lord)  v.  Ashburton  (Lord),  32 
Lemon  v.  Napper,  5,  405 
Leominster  Canal  Company  v. 
Shrewsbury  and  Hereford  Rail- 
way Company,  9,  65,  155 
Leroux  v.  Brown,  25,  155 
Leslie  v.  Tompson,  215 
Lesturgeon  v.  Martin,  357 
Levy  V.  Lindo,  326,  334 
Lewin  y.  Guest,  238,  374 
Lewis  V.  Bond,  282,  283 
V.  Lechmere  (Lord),  10,  127,  315 


V.  Loxam, 


59, 


373 

110,  112 

171 

261 

175,  188,  190 


Lightfoot  V.  Heron, 
Limondson  v.  Sweed, 
Lincoln  v.  Arcedeckne, 
Lindsay  v.  Lynch, 
Lindsey  (Earl  of)  v.  Great  North- 
ern Railway  Company,  60,  63,  177, 

296 
Lingan  v.  Simpson,  407 

Lloyd  V.  Collett,  314,  320 

T.  Lloyd,  277,  278 

V.  Loaring,  14 

V.  Rippingale,  314 

Logan  V.  Wienholt,  28,  60 

London  and  Birmingham  Railway 
Company  v.  Winter,   177,  219J  220, 

229 
London  (City  of)  v.  Mitford, 
V.  Nash,  17, 


V.  Pugh, 


Lord  V.  Lord, 

V.  Stephens, 

Lovcll  V.  Hicks, 
Lovelock  V.  Franklyn, 
Lowe  V.  Manners, 
V.  Swift. 


310,  405 

19,  117, 

145,  345 

30 

170 

273 

191,  192 

274 

369 

36 


Lowes  V.  Lush,  258,  261,  280 

Lowndes  v.  Lane,  200 

Lowther  v.  Andower  (Viscountess 

of),  38 

V.  Lowther  (Lord),         14,  130 

Lucas  V.  Commerford,  19 

V.Godwin,  312 

V.  James,   78,   79,    163,  250,  253, 

357 
Luders  v.  Anstey,  88 

Lukey  v.  Higgs,  122 

Lumley  v.  Wagner,  124,  245,  329,  330 
Lyddal  v.  Weston,  256 

Lyde  v.  Mynn,  399 

Lynn  v.  Chafers,  14 

Lyons  v.  Blenkin,  46 

Lysney  v.  Selby,  198 

Lytton  V.  Great  Northern  Railway 

Company,  243 

Macbryde  v.  Weekes,  211,  316,  319 

McCallan  v.  Mortimer,  146 

McCalmont  v.  Rankin,  408,  409 

McCulloch  V.  Gregory,  260,  309 

Macgregor  v.  the  Official  Manager 
of  the  Dover  and  Deal  Railway 
Company,  150 

Mackreth  v.  Marler,  314,  320 

V.  Symmons,  396 

Maclean  v.  Dunn,  164 

Macnamara  v.  Williams,  32 

McQueen  v.  Farquhar,  260,  348 

Madely  v.  Booth,  350 

Maester  v.  Gillespie,  238 

Magee  v.  Atkinson,  69 

Magennis  v   Fallon,  257,  325,  353,  372, 

373 
Magram  v.  Archbold,  30,  114 

Main  v.  Melbourn,  183 

Malins  v.  Freeman,  215 

Manning,  Ex  parte,  389 

Manser  v.  Back,  164,  213,  215,  229 

Margetson  v.  Wright,  201 

Marsh  v.  Milligan,  13,  102,  292 

Marshall  v.  Broadhurst,  50 

V.  Collett,  224 

V.  Sladden,  69 

197,  257,  341,  342 

72,  110,  137,  293 

329 

233 

45 

157,  214 

38 

369 

84,  85,  87 

113,  141,  142 

209 

251 

277 

171 

37,  58 

164 

333 


Martin  v.  Cotter, 

V.  Mitchell, 

V.  Nutkin, 

V.  Pycroft, 

Martyn  v.  Hind, 
Mason  v.  Armitage, 

V.  Franklin, 

Matthews  v.  Dana, 

Maunsell  v.  White, 

Maw  V.  Topham, 

Meadows  v.  Tanner, 

Mellish  V.  Motteux, 

Meredith  v.  Wynn, 

Mestaer  v.  Gillespie, 

Meux  V.  Maltby, 

Mews  V.  Carr, 

Mexborough  (Earl  of)  v.  Bower, 


TABLE    OF    CASES. 


Meynell  v.  Surtees,  7,  57,  75,  76,  78,  70, 

80,  97 
Mildmay  v.  Hungerford,  224 

Milligan  v.  Cooke,  138,  351 

V.  Mitchell,  333 

Milner  v.  Field,  96 

Miles  V.  Gery,  3,  95,  97 

Milward  v.  Thanet  (Earl),  320 

Minchin  v.  Nann,  386 

Minor,  Ex  parte,  204 

Mitford  V.  Mitford,  278 

Moens  v.  Heyworth,  192 

Mole  V.  Smith,  32 

Money  v.  Jordan,  84,  85 

Monk  V.  Iluskisson,  381 

Monro  v.  Taylor,  92,  94,  303,  313,  323, 
359,  379. 
Montacute  (Viscountess)  v.  Max- 
well, 86,  172 
Montefiori  v.  Montefiori,  83 
Montgomery  v.  Reilly,  88 
Moore  v.  Blake,                                   320 

V.  Crofton,  307 

V.  Edwards,  157,  158 

V.  Folly,  403 

V.  Hart,  87 

More  y.  Morecomb,  298 

Morehouse  v.  Colvin,  86 

Morgan  v.  Birnie,  96 

V.  Holford,  137 

V.  Milman,  7,  9,  36,  96,  177,  178 


343 

176 


V.  Rhodes, 

V.  Shaw, 

Morison  v.  Turnour, 
Morley  v.  Cook,  308, 

Morphett  v.  Jones, 
Morris  v.  Coleman, 

V.  McNeil, 

V.  Stephenson, 

Morrison  v.  Arnold, 
Morse  v.  Faulkner, 

V.  Merest, 

Mortimer  v.  Capper, 

V.  Orchard, 

•  V.  Shorhall, 

Mortlock  V.  BuUer,  2,  59,  111 


51,  53 

369,  391 

161 

352, 

180, 


47, 


375 

190 

245 

337 

293 

260 

'  400 

95,  323,  417 

132,  267 

188 

224 

113,115, 

137,  371 

20,  311 

41 

368,  370 

122 


Moseley  v.  "Virgin, 

Moss  V.  Bainbridge, 

V.  Mattiiews, 

Moxhay  v.  Inderwick, 

Moyses  v.  Little,  51 

Mumford  v.  Oxford  Railway  Com- 
pany, 3G 

Mummery  V.  Paul,  17 

Mundy  v.  Jolliffe,   177,   181,   188,   189, 

286 

Munro  v.  Taylor,  251 

Munt  T.  Shrewsbury  and  Chester 
Railway  Company,  153 

Murray  v.  Barlee,  72 

V.  Parker, 


Mussel  V.  Cooke, 
Myers  v.  Watson, 


222,224 
158 
271 


Nagle  V  Baylor, 

National    Exchange    Company   v. 

Drew,  193,  194, 

Neale  v.  Mackenzie,    113,  138,  139, 

V.  Neale, 

Neap  V.  Abbott, 
Needham  v.  Kirkman, 

V.  Smith, 

Neill  V.  Morley, 

Nelson  v.  Bridges, 

Nelthorpe  v.  Holgate,  34,   52, 


346, 
69, 
344, 
267, 


Nesbitt  V.  Meyer, 

Neville  v.  Wilkinson, 

Newberry  v.  James,  16,  330, 

Newham  v.  May, 

Newman  v.  Rodgers, 

Newmarch  v.  Brandling, 

Nicholson  v.  Knapp, 

Nickels  v.  Hancock,  117,  241,  414, 


Noel  V.  Hoy, 

Nokes  v.  Kilmorey  (Lord),         318, 

Norfolk  (Duke  of)  v.  Worthy, 

North  V.  Ansell, 

North  British  Railway  Company  v. 
Tod, 

Norton  v.  Mascall, 

V.  Searle, 

V.  White, 

V.  Wood, 

Norwich  (Mayor  of)  v.  Norfolk  Rail- 
way Company,         147,  150,  151, 

Nott  V.  Hill, 

V.  Riccard, 

Nunn  V.  Truscott, 

Nurse  v.  Seymour  (Lord),  69, 

Nutbrown  v.  Thornton,  11, 13 


112 

210 
281 
181 
215 
60 
60 
73 
355 
310, 
350 
268 
83 
407 
355 
315 
333 
335 
415, 
416 
372 
319 
352 
278 

271 

414 

13 

49 

8(; 

292 
131 
318 
283 
272 
15 


O'Connor  v.  Spaight, 

Ogilvie  V.  Foljambe, 

O'Herlihy  v.  Hedges, 

Okill  V.  Whittaker, 

Oldfield  V.  Round, 

Omerod  v.  Hardman, 

Onslow  V.  Londesborough  (Lord), 

Ord  V.  Johnston,  7,  25, 

V.  Noel, 

O'Reilly  v.  Thompson, 
Ormond  (Lord)  v.  Anderson 
O'Rourke  v.  Percival, 
Osbaldiston  v.  Askew, 
Osborne  v.  Harvey, 
Osgood  V.  Strode, 
Osmond  v.  Fitzroy, 
Otway  V.  Braithwaite, 
Owen  V.  Davies, 

V.  Thomas, 

Oxenden  v.  Falmouth  (Lord), 


92,  101,  161, 
53, 


183, 
98, 


342,  365, 


304 
367 
184 
225 
249 
361 
280 
134 
114 
186 
137 
142 
347 
392 
43 
73 
137 
389 
,93 
383 


Padwick  v.  Piatt, 
Page  V.  Adams, 

V.  Broom, 

Pain  V.  Coombs, 


33 

308 

49,  280 

180,  285 


xsvi     ^'^^    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Paine  v.  Meller,  2G4,  267 

Painter  v.  Newby,  310,  356 

Palmer  v.  Scott,  81,  135 

Paramore  v.  Greenslade,  264 

Paris  Chocolate  Company  v.  Crys- 
tal Palace  Company,         97,104,307 


Parken  v.  Whitby, 
Parker  v.  Frith, 

V.  Palmer, 

V.  Serjeant, 

V.  Smith, 

V.  Taswell, 

Parkin  v.  Thorold, 

Parkinson  v.  Lee, 
Partridge  v.  Strange, 
Paterson  v.  Long, 
Paton  V.  Brebner, 

V.  Rogers, 

Paxton  V.  Newton, 
Payne  v.  Banner, 
Peacock  v.  Penson, 
Peake,  Ex  parte, 
Pearce  v.  Watkins, 
Peele,  Ex  parte, 
Pegg  V.  Wisden, 
Pember  v.  Mathers, 
Pembroke  v.  Thorpe, 


145,  220,  416 

316 

107 

82 

185,  187 

103 

312,  313,  314,  318, 

322,  325 

250 

.  56 

32 

351 

368,  369,  373,  378 

19,  394 

316 

32,  121,  271 

108 

33 

41 

318,  325,  365 

172,  232 

15,  21,  120,  179, 

186 

24 


Pen  V.  Baltimore  (Lord), 
Perkins  v.  Ede, 

V.  Thornton, 

Persse  v.  Persse, 
Petre  v.  Buncombe, 
Petre  (Lord)  v.  Eastern 

Railway  Company, 
Phillips  V.  Buckingham  (Duke  of), 

V.  Clark, 

Everard, 


419 
347 
278 
400 
32 


27c 


Phipps  V.  Child 
Physician's  case, 
Pickard  v.  Sears, 
Pickering  v.  Dowson, 

V.  Ely  (Bishop  of) 

Pickering, 


Counties 

63 

54 

383 

49,280 

359, 362 

45 

84 

251 

23, 134 

107 

347 

313,  324,  378 

224,  226 

124 

173 

195,  203 

14,  16,  20,  316 

274 


Piers  V.  Lambert, 
Pincke  v.  Curties, 
Pitcairn  v.  Ogbourne 
Playford  v.  Playford, 
Podmore  v.  Gunning, 
Polhill  T.  Walter, 
Pollard  v.  Clayton, 
Poole  V.  Hill, 

V.  Shergold,  238 

Pooley  V.  Budd,  15 

Pope  V.  Garland,  202,  249 

V.  Roots,  266 

Portarlington  v.  Soulby,  25 

Portman  v.  Mill,  369,  373 

Portmore  (Earl  of)  v.  Taylor,  125 

Portmore  (Lord)  v.  Morris,  226 

Potter  V.  Commissioners  of  Revenue,  17 

V.  Potter,  171 

V.  Saunders,  58,  82 


Powell  V.  Dillon, 

V.  Doubble, 

V.  Knowler, 

■  V.  Lloyd, 

V.  Martyr, 


166 

352 

145 

280,  334 

379 

Prebble  v.  Boghurst,  28,  119 

Prendergast  v.  Turton,  315 

Preston  v.  Liverpool,  Manchester, 

and  Newcastle  Railway  Company,  63, 

65,  66 
Price  V.  Assheton,  86,  99,  280,  281,  307, 

334 

V.  Coombs,  284 

V.  Dyer,      217,  225,  226,  227,  306 

V.  Griffith,  93,  238 

V.  Macaulay,      193,  201,  343,  350, 

352 

V.  Penzance  (Corporation  of),     21 

V.  Strange,  256 

V.  Williams,  417 

Pritcbard  v.  Ovey,  91 

Propert  v.  Parker,  161 

Prosser  v.  Edmonds,  56 

V.  Watts,  257 

Prothero  v.  Phelps,    338,  339,  345,  355 
Pullen  V.  Ready,  224 

Pulvertoft  V.  Pulvertoft,  44 

Pye  V.  Daubuz,  60 

Pyke  V.  Pyke,  278 

V.  Williams,  180 

Pym  V.  Blackburn,  214 

V.  Campbell,  304 

Pyrke  v.  Waddingham,       255,  256,  261 

Radcliffe  v.  Warrington,  313,  318 

Ramsbottom  v.  Gosden,  218 

Ramsden  v.  Hirst,  352 

V.  Hylton,  278 

Randall  v.  Hall,  272 

V.  Morgan,  84,  169 

Ranger  v.  Great  Western  Railway 


Company, 
Rankin  v.  Huskisson, 
Rawlings  v.  Dalgleish, 
Rayner  v.  Grote, 

V.  Julian, 

V.  Stone, 


27,  31,  210 

330,  333 

328 

53 

39 

16 

337 

186 

106,402 

402 


Raynes  v.  Wyse, 
Redding  v.  Wilkes, 
Redshaw  v.  Bedford  Level 
Reos  V.  Dacre, 
Regent's  Canal  Company  v.  Ware,  10 
287,  379,  380 
Reg.  V.  Birmingham   and   Oxford 

Junction  Railway  Company.  9 

Revell  V.  Hussey,  '  117,  266 

Rex  V.   Hungerford   Market   Com- 
pany, 9 

V.  Marsh,  210 

V.  Scammonden,  233 

Reynell  v.  Sprye,  194,  202 

Reynolds  v.  Waring,  188,  318,  319,  338 
Rhodes  v.  Ibbetson,  341 

Rich  V.  Jackson,  228 


TABLE    OF    CASES. 


Richards  v.  Porter,  169 

Richardson  v.  Evton,  413 

Ricketts  v.  Bell,"'  101,  133,  220 

Ridgway  v.  Gray,  351,  353 

V.  Wharton,  98,  156,  157,  IGO, 

IGl,  163,  104,  165,  166,  167,  323 
Right  V.  Cuthell,  91 

Rist  V.  Hobson,  169 

Roake  v.  Kidd,  254 

Roberts  V.  Berry,  314 

V.  Marchant,  47 

V.  Massey,  397 

V.  Wyatt,  307 

Robertson  v.  Great  Western  Rail- 
way Company,  33 

V.  Skelton,  264,  383,  386 

Robinson  v.  Page,       220,  233,  305,  306 

V.  Wall,  209 

Robson  V.  Collins,  303 

Roffy  y.  Shatcross,  237 

V.  Shollcross,  237 

Rolfe  V.  Peterson,  29 

Rondeau  v.  Wyatt,  171 

Rook  V.  Warth,  15 

Roots  V.  Dormer  (Lord),  238 

Roper  V.  Bartholomew,  26,  29 

Rose  V.  Calland,  256,  361 

V.  Ciinynghame,  166 

Rosse  (Earl  of)  v.  Sterling,  306 

Rothschild    (De)    v.    Royal    Mail 

Steam  Packet  Company,  383 

Routledge  v.  Grant,  78,  80 

Rowe  V.  Teed,  158 

V.  Wood,  413 

Rowley  v.  Adams,  383 

Russell  v.  Darwin,  403 

Ryan  v.  Daniel,  400 

Sainsbury  v.  Jones,  395 

Sainter  v.  Ferguson,  25 

Salisbury    (Marquis   of)    v.  Great 

Northern  Railway  Company,  9 

Salisbury  v.  Hatcher,  136,  372 

Sanders  v.  Rodway,  410 

Sari  V.  Bourdillon,  92 

Saunders  v.  Cramer,  57,  88 

V.  Richards,  39 

Saunderson  v.  Cockerraouth  and 
Workington  Railway 
Company,  21,  103 

V.  Jackson,      162,  163,  167 
106 
49,  180,  190 
181 
106 
129,  131 
14 
327 
203,251 
163 
197,  348 
54 
83 
168 


Savage  v.  Brocksop, 

V.  Carroll, 

V.  Foster, 

V.  Taylor, 

Saville  v.  Saville, 

V.  Tancred, 

Scargill  v.  Hurry, 
Schneider  v.  Heath, 

V.  Norris, 

Scott  V.  Hanson, 

V.  Langstaffc, 

V.  Scott, 

Seagood  v.  Meale, 


Seaman  v.  Vawdrey, 

257 

Seaton  v.  Booth, 

238 

V.  Mapp,                  315 

317, 

341 

Seaward  v.  Willock, 

274 

Selby  V.  Selby, 

163 

Seton  V.  Slade,           137,312 

314, 

325 

Shackle  v.  Baker, 

1^, 

331 

Shackleton  v.  Sutcliffe, 

249, 

348 

Shannon  v.  Bradstreet, 

135, 

177 

Sharp  V.  Adcock, 

256 

V.  Carter, 

55 

V.  Milligan, 

163, 

322 

V.  Taylor, 

337 

Shaw  V.  Fisher,               13,  35 

302 

358 

V.  Mackray, 

112 

V.  Thackray, 

58 

Sheffield  v.  Mulgrave  (Lord), 

254, 

255 

Sheffield  Gas  Consumers'  Company 

V.  Harrison, 

19 

Shelburne     (Lady)    v.    Inchiquin 

(Lord), 

223 

Shelly  V.  Nash, 

125 

Shepherd  v.  Keatley, 

360 

Sherwin  v.  Shakspeare,    376, 

383, 

384, 
385 

Shirley  v.  Davis, 

347 

V.  Stratton, 

111 

347 

Shrewsbury  and  Birmingham  Rail- 
way Company  v.  London  and 
North-western  Railway  Com- 
pany,        115,  124,  144,  147,  148, 

Shrewsbury  and  Birmingham  Rail- 
way Company  v.  Stour  Valley 
Railway  Company, 

Siboni  v.  Kirkman, 

Sidebotham,  Ex  parte,  1, 

v.  Barrington, 

Simmonds  v.  Swaine, 

Simmons  v.  Cornelius, 

Simpson  v.  Denison, 

V.  Sadd, 

V.  Savage, 

Skinner  v.  M'Douall,       79,  93,  158, 

Sloman  v.  Walter, 

Sloper  V.  Fish,  253, 

Small  v.  Attwood,  69,  338, 

Smith  V.  Capron,  100, 

v.  Clarke,  67,  203. 

V.  Death, 

V.  Garland,  113,  136, 

V.  Harrison,  109,  112, 

V. Jackson, 

V,  Jeyes,' 

V.  Lloyd, 

V.  Neale, 

V.  Phillips, 

V.  Tolcher, 

Smout  V.  Hbery, 

Smyth  V.  Nangle, 

Sneesley  v.  Thome, 

Sober  v.  Kemp, 

Solomon  v.  Laing, 

Somerset  (Duke  of)  v.  Cookson, 

v.  Gourlav 


32i 


119 
49 
363 
371 
297 
183 
154 
367 
36 
160 
29 
261 
365 
367 
209 
261 
258 
359 
392 
303 
391 
81 
58 
351 
194 
404 
114 

O't 

153 

13 

283 


isviii    FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Somerville  v.  Chapman,  402 

Souter  V.  Drake,  100 

South-eastern  Railway  Company  v. 

Knott,  135 

South  Wales  Railway  Company  v. 

Wythes,  1,  20,  22,  98,  103,  104,  183, 
241,  417 
South  Yorkshire  Railway  and  River 

Dan  Company  v.  Great  Northern 

Railway  Company,  147,  148 

Southampton  (Lord)  v.  Brown,  41 

Southby  V.  Hutt,  342,  359 

Southcomb  v.  Exeter  (Bishop  of),  321, 
323,  324,  395 
Spain  (King  of)  v.  De  Machado,  33,  67 
Sparks   v.  Liverpool   Waterworks 


Company, 
Spence  v.  Hogg, 
Spencer  v.  Topham, 
Spiller  V.  Spiller, 
Spratt  V.  Jeffery, 
Springwell  v.  Allen, 
Sprye  v.  Porter, 
Spurrier  v.  Fitzgerald, 

v.  Hancock, 

Squire  v.  Campbell, 
V.  Whitton, 


316 

58 

257 

335,  336 

361 

251 

56 

158,  169,  170 

321,322 

229,  271 

94 

351 


Stanhope's  (Lord)  case, 

Stanley  v.  Chester  and  Birkenhead 

Railway  Company,  35,  60,  62, 
296,  302 

V.  Robinson, 

Stanton  v.  Tattersall, 


Stapilton  v.  Stapilton, 
Stapylton  v.  Scott, 
Stedman  v.  Collett, 
Stent  V.  Bailis, 
Stephens  v.  Hotham, 

v.  Olive, 

V.  Trueman, 

Stevens  v.  Adamson, 

V.  Benning, 

V.  Guppy, 

Stewart  v.  Alliston, 

V.  Denton, 

V.  Smith, 

Stllwell  V.  Wilkins, 
Stocken  v.  Collin, 
Stocker  v.  Brocklebank, 

V.  Dean, 

V.  Wedderburn, 


110 

250,  352,  364 

107 

221,  311,  347 

235 

266 

49,  130,  280 

411 

44 

250 

53 

364 

2,  93,  343,  352 

180 

319 

129 

82 

23 

53 

240, 

246 

224 


128. 


19,  134, 


Stockley  v.  Stockley,  181 

Stockton  and  Hartlepool  Railway 
Comjiany  v.  Leeds  and  Thirsk 
Railway  Company,  332 

Stokes  V.  Moore,  162 

Stone  V.  Commercial  Railway  Com- 
pany, 9 
Storer  v.  Great  Western  Railway 

Company,  21,  22,  120 

Storry  v.  Walsh,  384 

Stourton  (Lord)  v.  Meers,  371 

Stowell  V.  Robinson,  312 


Stratford  v.  Bosworth,  75,  99,  159 

Street  v.  Rigby,  417 

Strickland  v.  Turner,  263,  268 

Stuart   (Lord    James)   v.   London 
and  North-western  Railway  Com- 
pany, 6,  121,  135,  322,  324 
Sturge  V.  Midland  Railway  Com- 
pany, 7,  18,  105 
Surcome  v.  Pinniger,   169,180,  181,  185 
Sutherland  v.  Briggs,  138,  181,  189,  190 
Sutton,  Ex  parte,  280 

V.  Chetwynd,  43 

Sweet  V.  Lee,  161 

Swinfen  v.  Swiufen,  413 

Symonds  v.  James,  342,  343 

Symondson  v.  Tweed,  157 


Talbot  V.  Ford, 
Tanner  v.  Smith, 
Tasker  v.  Small, 
Tatham  v.  Piatt, 
Tawney  v.  Crowther, 
Taylor  v.  Ashton, 

V.  Beech, 

V.  Brown, 

V.  Davis, 

V.  Gilbertson, 

V.  Martindale, 

V.  Neville, 

V.  Portington, 

V.  Salmon, 

V.  Stibbert, 

Tenant  v.  Elliott, 
Tendring  v.  London, 
Thomas  v.  Blackman, 


123 

308 

32,  34 

105 

159,  166 

192 

169,  184 

318 

330 

105 

341,  360 

16 

103 

37,  69 

57 

146 

372 

77,322 

. V.  Dering,        113,  140,  141,  160 

Thompson  v.  Blackstone,  114 

V.  Guyon,  283,  285 

Thomson  v.  Thomson,  146 

Thornbury  v.  Bevill,  18,  76,  80 

Thornett  v.  Haines,  209,  210 

Thurnell  v.  Balburnie,  96 

Tbynnev.  Glengall  (Lord),  179 

Tibbut  V.  Potter,  413 

Tilly  V.  Peers,  129 

Tindal  v.  Cobham,  391,  393 

Todd  V.  Gee,  345,  395 

Toller  V.  Carteret,  25 

Tomkinsou  v.  Staight,  175,  190 

Toole  v.  Medlicott,  181,  190 

Tourle  v.  Rand,  60 

Townley  v.  Bond,  362 

Townsend  v.  Champernowne,  48 

Townshend     (Marquis)     v.    Stan- 


groom, 
Trant  v.  Dwyer, 
Trefusis  v.  Clinton  (Lord) 
Tritton  v.  Foote, 
Trower  v.  Newcome, 
Tulk  V.  Moxhay, 
Turner  v.  Harvey, 

V.  Wright, 

Twigg  V.  Fifield, 
Twining  v.  Morrice, 


213,  223,  226,  232 
285,  405 


40 


389 

403 

■  197 

59 

115,208 

336 

264 

106,  111 


TABLE    OF    CASES. 


Underhill  v.  Harwood, 
Underwood  v.  Hithcox, 


130 
90 


Van  V.  Corpe,  202,  220,  395 

Vancouver  v.  Bliss,  254,  371 

Vandenanker  v.  Desborough,  51 

Vansittart  v.  Vansittart,       72,  241,  410 
Vauxhall  Bridge  Company  v.  Spen- 
cer, (Earl),  63 
Vernon  v.  Keys,                                  208 

V.  Vernon,  44 

Vesey  v.  Elwood,  264 

Vigers  v.  Pike,  200 

Vouillon  V.  States,  223 

Wakeman  v.  Rutland  (Countess  of),   47 
Walker  v.  Barnes,  291 

V.  Bartlett,  13 

V.  Eastern   Counties    Rail- 
way Company,      9,  11,  79,  92 


Jeffreys, 

\ .  Walker, 

Wall  V.  Stubbs, 
Waller  v.  Hendon, 
Wallis  v.  Day, 

V.  Sarel, 

V.  Woodyear, 


283, 


55, 


285,  315 
172,  231 
193,  197 

164 

22 

389,  390 

365 


Walpole  (Lord)  v.  Orford  (Lord), 

60,  85,  90,  179 
Walters  v.  Northern   Coal  Mining 

Company,  268 

V.  Upton,  391 

Wankford  v.  Fotherley,  87 

Warden  v.  Jones,  173,  184,  185 

Wardle  v.  Carter,  125 

Ware  r.  Grand   Junction   Water- 
works Company,  331 
Waring   v.    Manchester,    SheflBeld, 
and  Lincolnshire  Railway  Com- 
pany,                                         240,  243 
Warner  v.  White,  297 

T.  Willington,  76,  77,  80,  81,  94, 

168 
Warren  v.  Richardson,  367 

Watson  V.  Hemsworth  Hospital,       404 

V.  Marston,  123 

T.  Reid,  322,324 

Watt  v.  Evans,  182,  183 
Weatherall  v.  Geering,  55,  280 
Webb  V.  Clarke,  30 
V.  Direct  London  and  Ports- 
mouth Railway  Company,  6,  104, 
116,  120,  287 

V.  Kirby,  394 

Webster  v.  Dillon,  246 

V.  Webster,  185 

Weddall  v.  Nixon,  260,  389 

Wedgwood  v.  Adams,  122 

Welford  v.  Beazely,  162,  168 

Wellesley  v.  WeMesley,  411 

Wentworth  v.  Cock,  50 

Western  v.  Russell,     137,  138,  161,  168 
Westmeath    (Lord)   v.  Westmeath 
(Countess  of), 

November,  1858. — 3 


411 


Wethered  v.  Wethered,  399 

Whaley  v.  Bagnal,  186 

Wheatley  v.  Slade,  141 

Wheeler  v.  D'Esterre,  98 

V.  Home,  385 

V.  Trotter,  18 

Wheelton  v.  Hardisty,  194,  196 

Whitbread,  Ex  parte,  158 

V.  Brockhurst,         157,  177 

Whitchurch  v.  Bevis,  157,  169,  173 

White  V.  Cuddon,  114,  141,  353 

V.  Damon,  130 

V.  Proctor,  164 

Whittaker  v.  Howe,  18, 245,  333 

Wickham  v.  Evered,  391,  393 

Wigley  V.  Blackwal,  297 

Wilbraham  v.  Livesey,  360 

Wilde  V.  Fort,  312 

V.Gibson,  191,195,207,210 

Wilkes  V.  Wilkes,  410 

Wilkinson  v.  Torkington, 

Wilks  V.  Davis, 

Willan  V.  Willan, 

Willcox  V.  Bellaers, 

Willets  V.  Bushby, 

Williams,  Ex  parte, 

V.  Edwards, 

V.  St.  George's  Harbour 

Company,  63,  65 

V.Shaw,  311 

V.  Steward,  5 

V.  Williams,  79,  321,  330,  331, 

407 
Williamson  v.  Wootton,  105 

Willingham  v.  Jovce,  280,  281 

Wills  V.  Stradling,      176,  181,  183,  184 
Wilmot  V   Wilkinson,  274,  359 

Wilson  V.  Bellairs,  373 

V.  Clapham,  378,  385 

V.  Fuller,  193 

V.  Kearse,  133 

V.  Short,  56,  201 

V.  Williams,  138,  344,  345,  351, 

353 

V.  Wilson,         24,  335,  410,  411 

Winch  V.  Winchester,  228 

Winnington  v.  Briscoe,  143,  269 

Winter  v.  Blades,  380 

Wiseman  v.  Roper,  397 

Withy  V.  Cottle,        8,  12,  315,  368,  369 
Wood  V.  Abrey,  125 

V.  Bernal,  325,351 

V.Griffith, 56,117,145, 414,415,  416 


268 

96 

106,  402 

254,  373 

39 

41 

354,  395 


V.  Machu, 

368, 

369 

V.  Midgley,           156, 

159,  169, 

173 

V.  Richardson, 

113 

V.  Rowcliffe, 

15 

V.  Rowe, 

413 

V.  Scarth, 

167, 

220 

V.  White, 

32 

Woodward  v.  Gyles, 

29 

V.  Miller, 

209, 

210 

Woolam  V.  Hearne, 

228, 

230 

Worley  v.  Frampton, 

280 

XXX      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 


Worthington  v.  Warrington,  99 

Wright  V.  Bell,  4 

V.  Bigg,  82 

V.  Bond,  368 

V.  Howard,  315 

V.  Wright,  398 

Wrigley  v.  Sykes,  256 

Wynn  v.  Morgan,  371 


Wynne  v.  Griffith,  375 

V.  Price,  13 

Wythes  v.  Lee,  141,  395 

Wyvill  V.  Exeter  (Bishop  of),  264 

Young  V.  Clarke,  127 

Younge  v.  Duncombe,  391 

Yovatt  V.  Winyard,  407 


THE    SPECIFIC 

PERFORMANCE  OF  CONTRACTS. 


PART   I. 

OF  THE  JURISDICTION. 


CHAPTER  L 

OF  THE  CONTRACTS  IN  GENERAL  WHICH  ARE  SUBJECTS  OF  THE  JURIS- 
DICTION. 

§  1.  The  specific  performance  of  contracts  is  an  ancient  branch  of  the 
equitable  jurisdiction  of  the  Court  of  Chancery,(a)  arising  out  of  the 
incapacity  of  the  courts  of  common  law  to  enforce  the  actual  perform- 
ance of  the  contract :  for  these  courts,  though  recognizing  the  obligation 
of  the  parties  to  a  contract  to  perform  their  respective  parts,  enforce  this 
obligation,  not  specifically,  but  only  by  way  of  damages.  The  maxim  of 
the  civil  law,  Nemo  potest  ])rcecise  cogi  ad  factum, (h^  is  equally  the  prin- 
ciple of  the  common  law  of  England.  The  grounds  on  which  this  juris- 
diction is  founded,  and  the  consequent  extent  of  it,  will  be  best  stated 
by  a  consideration  of  the  contracts  in  respect  of  which  equity  will  thus 
interfere. 

§  2.  There  are  many  cases  in  which,  though  a  contract  is  in  conscience 
obligatory  upon  both  the  parties  to  it,  yet  *the  common  law,  from  ^  ^^  , 
the  strictness  of  its  forms,  affords  no  remedy  to  the  party  injured  L  "  J 
by  the  non-performance  of  the  other.  The  defect  of  justice  which  would 
hence  arise  is  avoided  by  the  jurisdiction  of  equity,  which  in  such  cases 
compels  the  specific  execution  of  the  contract,  if  in  other  respects  fit  for 
the  intervention  of  the  court. 

(rt)  The  Court  of  Bankruptcy  has  not  jurisdiction  in  specific  performance.  Ex 
parte  Cutts,  3  Deac.  242,  overruling  Ex  parte  Sidebotham,  1  Mon.  &  Ayr.  655,  Ex 
parte  Barrington,  2  Mon.  &  Avr.  245. 

{b)  See  Pothier,  Tr.  des  Oblig.  Part  I,  chap.  ii.  art.  2,  §  2. 


32       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  3.  At  law,  exact  performance  by  the  plaintiff  of  his  part  of  the  con- 
tract according  to  its  very  terms,  must  be  averred  and  proved ;  whereas, 
in  equity,  a  distinction  is  made  between  those  terms  whicb  are  of  the 
essence  of  the  contract  and  those  terms  which  are  not  thus  essential,  and 
a  breach  of  which  it  is  inequitable  for  either  party  to  set  up  against  the 
other  as  a  reason  for  refusing  to  execute  the  agreement  between  them. 
In  these  cases  the  doctrine  of  common  law  is  forfeiture,  the  doctrine  of 
equity  is  compensation.  "Lord  Thurlow,"  to  quote  the  language  of  his 
successor  Lord  Eldon,(c)  "used  to  refer  this  doctrine  of  specific  perform- 
ance to  this ; — that  it  is  scarcely  possible  that  there  may  not  be  some 
small  mistake  or  inaccuracy ;  as,  that  a  leasehold  interest  represented  to 
be  for  twenty-one  years,  may  be  for  twenty  years  and  nine  months ;  some 
of  those  little  circumstances  that  would  defeat  an  action  at  law,  and  yet 
lie  so  clearly  in  compensation  that  they  ought  not  to  prevent  the  execu- 
tion of  the  contract."  On  this  ground  the  jurisdiction  rests  in  all  cases 
where  specific  performance  is  decreed  with  compensation. 

§  4.  The  fact  that  the  legal  remedy  has  been  lost  by  the  default  of 
the  very  party  seeking  the  specific  performance  will  not  exclude  the 
jurisdiction,  if  it  be  notwithstanding  conscientious  that  the  agreement 
should  be  performed ;  as  in  cases  where  the  plaintiff  has  performed  his 
part  substantially,  but  not  with  such  exactitude  as  to  be  able  to  plead 
performance  at  law.((^) 

r*q-|  *§  5.  But  besides  these  cases,  there  are  many  others  in  which 
L  J  the  court  interferes,  because  there  is  no  remedy  at  law,  by  reason 
of  something  in  the  subject-matter  of  the  contract,  or  the  parties  to  it, 
or  the  form  in  which  it  is  concluded. 

§  6.  Thus  it  will  give  relief  in  respect  of  an  agreement  to  assign  a 
cbose  in  action, (e)  or  of  an  agreement  respecting  the  hope  of  succession 
of  an  heir,(/)  although  no  damages  could  be  recovered  at  law  for  con- 
tracts dealing  with  these  subject-matters. 

§  7.  And  so  again,  though  no  action  would  lie  in  respect  of  a  contract 
to  convey  by  a  particular  day,  which  was  rendered  impossible  by  the 
death  of  the  contractor  before  that  day,  yet  specific  performance  would 
be  decreed  against  the  heir.^f^)  And  the  court  has  interfered  specifically 
to  execute  an  agreement  evidenced  by  a  bond  given  to  a  wife  by  her 
husband,  or  to  a  husband  by  his  wife, (A)  before  marriage,  though  the 
bond  was  suspended  at  law  by  the  intermarriage. 

§  8.  The  same  principle  equally  applies  to  give  the  court  jurisdiction 
where,  though  the  contract  is  in  its  nature  such  that  a  breach  of  it  can 
be  satisfied  by  damages,  yet  from  some  particular  circumstances  this 
remedy  is  not  open  to  the  aggrieved  party ;  therefore,  where  a  contract 
for  the  purchase  of  timber-trees  was  comprised  in  a  memorandum  which 

(c)  In  Mortlock  v.  Bullcr,  10  Ves.  305,  30G.  See  also  Stewart  v.  Alliston,  1  Mer. 
2G,  32. 

(d)  Davis  v.  Hone,  2  Sch.  &  Lef.  341,  347.  (e)  1  Mad.  Ch.  362. 

(/)  Jones  V.  Roe,  3  T.  R.  88,  compared  with  Beckley  v.  Newland,  2  P.  Wms. 
182,  and  cases  infra,  g  940,  et  seq.     See  also  1  Fonbl.  Eq.  216. 

{{/)  Sec  Arguments  of  Counsel  in  Milnes  v.  Gery,  14  Ves.  403;  1  Mad.  Ch.  362. 

(/j)  Cannel  v.  Buckle,  2  P.  Wms.  242  ;  Actoa  V.  Acton,  Prec.  Ch.  237.  See 
Gage  V.  Acton,  1  Salk.  325. 


WHAT    CONTRACTS    ARE    PERFORMED,  33 

appeared  not  to  be  the  final  contract,  but  was  to  be  made  complete  by 
subsequent  articles,  so  that  it  was  doubtful  whether  the  agreement,  as  it 
then  stood,  would  not  have  been  considered  at  law  as  incomplete,  and  so 
the  plaintiff  have  been  debarred  of  any  remedy  there,  Lord  Ilardwickc 
*hcld  that  the  contract  was  one  which  the  court  could  specifically  r-^^i-, 
perform. (A  In  another  case  a  contract  to  purchase  a  debt  was  L  -• 
enforced  against  the  purchaser,  on  the  ground  that  the  debt  had  not 
been  so  assigned  to  him  as  to  enable  him  successfully  to  sue  at  law  •,{k) 
and  in  the  case  of  a  contract  for  the  purchase  of  government  stock,  the 
fact  that  the  plaintiff  was  not  the  original  holder  of  the  scrip,  but  merely 
the  bearer,  which  rendered  it  doubtful  whether  he  could  maintain  an 
action  at  law  upon  the  contract,  was  one  ground  on  which  the  court  was 
held  to  have  jurisdiction.^/) 

§  9.  It  is  said  that  before  the  time  of  Lord  Somers  the  practice  was  to 
send  the  parties  to  law,  and  to  entertain  the  suit  only  in  case  of  the  plain- 
tiff's there  recovering  damages, (m)  a  practice  which,  of  course,  involved 
the  proposition  that  specific  performance  could  not  be  granted  except  in 
cases  where  damages  could  be  recovered  at  law.  The  case  in  which  this 
principle  was  the  most  distinctly  maintained,  was  that  of  Dr.  Bettesworth  v. 
The  Dean  and  Chapter  of  St.  Paurs,(H)  decided  by  Lord  King  in  1726, 
withjthe  assistance  of  Lord  C.  J.  Raymond  and  Mr.  Justice  Price.  A  lease 
had  been  granted  by  the  defendants  previously  to  the  disabling  statute  of 
13  Eliz.,  with  the  covenant  to  renew  for  ninety-nine  years,  and  the  plain- 
tiff sought  a  renewal  for  the  term  allowed  by  the  statute,  which  the  lord 
chancellor  refused,  on  the  ground  that  no  action  could  have  been  main- 
tained on  the  covenant  after  the  passing  of  the  statute.  '<  I  take  this  to 
be  a  certain  clear  rule  of  equity,"  said  Lord  Raymond, (o)  "  that  a  specific 
performance  shall  never  be  compelled  for  the  not  doing  of  which  the 
law  would  not  give  damages.  The  covenant  to  oblige  *them  to  r^r-i 
make  a  lease  for  ninety-nine  years  is  gone,  and  damages  cannot  be  L  -• 
recovered  for  part  of  a  covenant,  and  therefore  am  of  opinion  equity  can- 
not interfere."  This  decision,  which  was  opposed  by  the  opinion  of  Sir 
Joseph  Jekyll,  was  reversed  in  the  house  of  lords ;  and  it  is  abundantly 
evident,  from  the  cases  already  cited,  that  the  jurisdiction  at  present 
exercised  is  not  restrained  within  these  limits,  and  that  there  are  many 
cases  in  which  specific  performance  is  granted  where  no  action  for 
damages  could  be  maintained. (/A 

§  10.  As  the  courts  of  equity  interfere  where  the  legal  remedy  is 
entirely  wanting,  so  they  assume  jurisdiction  also  where  this  remedy, 
though  not  entirely  wanting,  is  yet  inadequate  to  the  full  demands  of 
justice. 

§  11.  The  only  remedy  in  courts  of  law  for  the  non-performance  of  a 

(i)  Buxton  V.  Lister,  3  Atky.  383,  but  see  infra,  ^|  203,  342. 

(k)  Wright  V.  Bell,  5  Pri.  325.  (I)  Doloret  v.  Rothschild,  1  S.  &  S.  590. 

(;«)  Per  Sir  T.  Clarke  in  Dodsely  v.  Kinnersley,  Ambl.  400. 

(n)  Sel.  Cas.  in  Ch.  G6.  (o)  p.  69. 

(/>)  Per  Lord  Redesdale  in  Lennon  v.  Napper,  2  Sch.  &  Lee.  682  ;  Cannel  v. 
Buckle,  2  P.  Wms.  242.  The  passage  in  Williams  v.  Steward,  3  Mer.  491,  to  which 
Mr.  Justice  Story  (Eq.  Jur.  §  T41,)  has  referred  as  a  dictum  of  Sir  Wm.  Grant,  is 
the  language  of  counsel  arguendo. 


34   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

contract  is  in  damages,  that  is  to  say,  in  the  payment  of  a  sum  of  money 
by  the  party  who  has  broken  the  contract  to  the  party  injured  by  that 
breach.  If  money  were  in  all  cases  a  measure  of  the  injury  done  by 
this  breach,  it  is  evident  that  an  exact  equivalent  for  the  wrong  might 
be  made,  and  that  the  justice  done  would  be  complete.  But  money  is, 
it  seems,  an  exact  equivalent,  only  when  by  money  the  loss  sustained  by 
the  breach  of  contract  can  be  fully  restored.  Now,  in  a  vast  variety  of 
cases,  this  is  not  so ;  for  though  one  sovereign  or  one  shilling  is  to  all 
intents  and  purposes  as  good  as  any  other  sovereign  or  shilling,  yet  one 
landed  estate,  though  of  precisely  the  same  market  value  as  another, 
may  be  vastly  different  in  every  other  circumstance  that  makes  it  an 
object  of  desire  ;  so  that  it  evidently  follows  that  there  would  be  a  failure 
of  justice,  unless  some  other  jurisdiction  supplemented  that  of  common 
P^Pi  law,  by  compelling  the  ^defaulting  party  to  do  that  which  in  con- 
L  J  science  he  is  bound  to  do,  namely,  actually  and  specifically  to  per- 
form his  agreement.  The  common  law  treats  as  universal  a  proposition 
which  is  for  the  most  part,  but  not  universally,  true,  namely,  that 
money  is  a  measure  of  every  loss.(2)  The  defect  of  justice  which  arises 
from  this  universality  of  the  legal  principle  is  met  and  remedied  by  the 
jurisdiction  of  courts  of  equity  to  compel  specific  performance. 

§  12.  The  ground  of  this  jurisdiction  being  the  inadequacy  of  the 
remedy  at  law,  it  follows  that  where  that  remedy  is  adequate,  chancery 
will  not  interfere  to  compel  specific  performance.  It  is  on  this  ground 
that  the  court  refuses  generally  to  entertain  suits  in  respect  of  govern- 
ment stock  or  chattels,  as  will  be  hereafter  seen  ;  and  in  all  cases 
where  the  contract  is  satisfied  by  a  mere  payment  of  money. (r) 

§  13.  The  principle  has  been  recently  recognized  in  several  other 
cases.  It  was  one  of  the  grounds  on  which  the  lords  justices  acted  in 
dismissing  the  bill  in  Lord  James  Stuart  v.  London  and  North-western 
Railway  Company,(s)  as  far  as  regards  specific  performance,  and  only 
putting  the  defendants  on  terms  to  make  certain  admissions  in  any 
action  at  law  to  be  brought  by  the  plaintiff  against  them, — their  lord- 
ships considering  that,  the  railway  having  been  abandoned  and  complete 
relief  being  in  their  opinion  obtainable  at  law,  the  case  was  not  one  for 
specific  performance.  It  was  also  one  of  the  reasons  alleged  for  dismiss- 
ing the  bill  by  Lord  Cranworth  in  Webb  v.  Direct  London  and  Ports- 
mouth Railway  Company,^^)  he  considering  that  under  the  circumstances 
the  vendor  could  obtain  complete  relief  at  law.  The  authority  of  these 
decisions  has  been  subsequently  questioned  by  Lord  St.  Leonard's(M)  but 
pj^--,  *as  to  the  applicability  of  the  principle  to  the  circumstances,  and 
L      -J  not  as  to  the  validity  of  the  principle  itself. 

§  14.  In  one  case,(v)  specific  performance  was  sought  of  an  agreement 
for  a  tenancy  from  year  to  year,  the  agreementspecifying  that  the  tenant 

(q)  See  Aris.  Eth.  Nic.  lib.  ix.  c.  1. 

(r)  See  the  cases  on  contracts  with  a  penalty,  infra,  ^  66,  et  seq. 
(.s)  1  De  G.  M.  &  G.  121.  (()  1  De  G.  M.  &  G.  521. 

(u)  Ilawkes  v.  Eastern  Counties  Railway  Company,  1  De  G.  M.  &  G.  737  ;  S.  C. 
5  Ho.  Lords,  331. 

(v)  Clavton  v.  Illingworth,  10  Ila.  451. 


WHAT    CONTRACTS    ARE    PERFORMED.  35 

was  in  all  respects  to  abide  by  tlie  terms  entered  into  by  a  previous 
tenant,  and  that  the  tenant  should  pay  for  an  agreement  to  be  drawn  up  ; 
it  was  contended  that  the  court  would  therefore  interfere  for  the  purpose 
of  settling  the  proper  terms  of  the  agreement.  But  the  court  thought 
the  remedy  at  law  was  adequate,  and  that  the  full  terms  of  the  agree- 
ment might  be  shown  there,  and  therefore  refused  to  decree  performance. 

§  15.  On  this  ground  also,  as  well  as  that  of  the  incapacity  of  the 
court  to  carry  out  the  works,  the  courts  refused  specifically  to  perform  a 
contract  to  make  a  branch  railway,  although  the  agreement  for  the  exe- 
cution of  it  had  been  entered  into  during  the  pendency  of  the  bill  before 
parliament,  and  when  several  of  the  directors  had  thoughts  of  withdraw- 
ing the  bill,  and  would  have  in  fact  done  so,  as  the  bill  alleged,  but  for 
the  agreement  in  question. (kj) 

§  16.  And  where  a  bill  sought  the  specific  performance  of  an  agree- 
ment which  would  have  been  effected  by  a  mere  account  of  profits  and  a 
payment  of  the  amount  found  due,  and  there  was  no  obstacle  to  the  re- 
covery of  the  amount  at  law,  the  court  dismissed  it. (a?) 

§  17.  In  analogy  with  this  principle,  in  a  recent  case(;/)  in  which  the 
plaintifis  sought  the  specific  performance  of  an  agreement  to  grant  a  way- 
leave  for  a  railway  for  a  *term  of  sixty  years,  and  between  the  r^^g-. 
filing  of  the  bill  and  the  hearing,  the  plaintifis  had  obtained  sta-  L  J 
tutory  powers  to  take  the  land  in  fee,  the  Vice-Chancellor  Sir  John 
Stuart  considered  this  to  be  a  circumstance  strongly  influencing  the  dis- 
cretion of  the  court  against  specific  performance. 

§  18.  But  where  the  parties  to  an  agreement  might  have  compensa- 
tion in  damages,  equivalent  in  value  to  what  the  court  can  give  by  its 
decree,  but  a  court  of  law,  not  being  able  to  modify  its  judgment,  would 
be  unable  to  preserve  the  benefit  of  the  agreement  to  all  parties,  then 
equity  has  jurisdiction  specifically  to  perform  the  agreement.  So  where 
A.  gave  a  note  to  B.,  and  C.  agreed  with  B.  for  the  relinquishment  of 
his  (B.'s)  claim  against  A.  on  the  payment  of  certain  sums,  for  which 
the  notes  were,  in  the  contemplation  of  equity,  to  stand  only  as  a  secu- 
rity, it  was  held  that  the  court  would  specifically  perform  the  agreement, 
though  the  relations  between  the  parties  might  have  been  worked  out 
by  actions  at  law.  (2) 

§  19.  Sir  John  Leach  seems  to  have  considered  that  the  fact  that  the 
remedy  in  damages  given  at  law  depends  for  its  beneficial  eff'ect  upon 
the  personal  responsibility  of  the  party,  gave  the  other  party  to  the  con- 
tract a  right  to  sue  in  equity  for  its  actual  performance. (a)  It  is  evi- 
dent that  this  principle  applies  to  all  damages,  and,  if  it  were  admitted, 
would  give  the  court  jurisdiction  in  all  cases  of  contract,  whether  for  the 
sale  of  chattels  or  of  any  other  nature,  which  certainly  is  not  the  law  of  the 

(w)  South  Wales  Railway  Company  v.  Wythes,  1  K.  &  J.  186  ;  S.  C.  5  De  G.  M. 
&  G.  880. 

(x)  Ord  V.  Johnston,  1  Jur.  N.  S.  10G3,  (Stuart  V.  C.)  See  also  Sturge  v.  Mid- 
land Raihyay  Company,  Week.  Rep.  1857-1858,  233. 

((/)  Meynell  v.  Surtces,  3  Sm.  &  Gif.  101.  See  also  per  Lord  Cranworth  in  Mor- 
gan V.  Milman,  3  De  G.  M.  &  G.  35. 

(r)  Beech  v.  Ford,  T  Ha.  208.     Affirmed  by  L.  C. 

(a)  Doloret  v.  Rothschild,  1  S.  &  S.  590. 


3G       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

court.  Indeed,  that  learned  judge  seems  to  have  shown  a  tendency  to 
extend  the  jurisdiction  in  specific  performance  somewhat  more  liberally 
than  other  equity  judges. (£) 

=*=§  20.  A  question  as  to  the  adequacy  of  the  legal  remedy  has 
L  -I  arisen  in  respect  of  the  compulsory  powers  of  railway  or  other  pub- 
lic companies,  to  take  lands  required  for  the  purposes  of  their  under- 
takings. It  has  been  decided  that  a  species  of  contract  is  constituted  by 
a  notice  served  on  a  landowner  by  such  a  company, (c)  acceptance  here 
being  unnecessary,  inasmuch  as  the  vendor  has  no  power  to  refuse  ;(f7) 
and  that  by  this  notice  the  company  and  the  landowner  are  placed  in  the 
relation  of  vendor  and  purchaser,  binding  both  parties,  and  taking  the 
subsequent  proceedings  for  the  enforcement  of  the  contract  thus  consti- 
tuted, out  of  the  limitation  of  time  for  the  exercise  of  the  compulsory 
powers  of  the  company. (e;) 

*  21.  With  regard  to  the  interference  of  the  court  in  respect  of  such 
contracts,  and  the  adequacy  or  inadequacy  of  the  statutory  remedies,  a 
distinction  must  be  taken.  In  those  cases  in  which  the  contract  depends 
entirely  on  the  statutory  powers  of  the  company,  and  there  are  statutory 
methods  prescribed  by  the  Lands  Clauses  Consolidation  Act  for  working 
out  the  rights  of  the  parties,  a  court  of  equity  will  not,  it  seems,  inter- 
fere :  so  that  in  one  case,(/)  Lord  Cottenham,  overruling  a  decision  of  Vice- 
Chancellor  Wigram,  allowed  a  demurrer  to  a  bill  to  compel  the  company 
who  were  in  possession  of  the  land  to  summon  a  jury,  his  lordship  holding 
r*im  *^^^  ^^^  notice  per  se  did  not  give  the  *court  jurisdiction,  and 
L        J  that  the  rights  of  the  parties  were  to  be  regulated  by  the  statute. 

§  22.  But  when  the  contract  is  no  longer  an  incipient  one  under  the 
statutory  provisions,  but  the  company  has  bound  itself  by  a  contract, 
valid  under  the  Statute  of  Frauds,  then  its  completion  may  be  compelled 
by  either  party  in  an  ordinary  suit;  and  that,  notwithstanding  that  the 
circumstances  which  led  the  company  into  the  contract  may  have  arisen 
out  of  the  act  of  parliament,  or  that  the  written  contract  is  in  part  found 
in  documents  which  were  originally  intended  to  be  ancillary  to  the  enforc- 
ing of  the  contract  under  the  act  of  parliament. (^) 

§  23.  It  might  appear  at  first  sight  that  inasmuch  as  money  in  exchange 

(6)  Se«  Withy  v.  Cottle,  1  S.  &  S.  594 ;  Kenney  v.  Wexham,  6  Mad.  355.  Cf. 
Brealey  V.  Collins,  You.  317,  330. 

(c)  Rex  V.  Hungerford  Market  Company,  4  B.  &  Ad.  327  ;  Walker  v.  Eastern 
Counties  Railway  Company,  6  Ha.  594 ;  Doo  v.  London  and  Croydon  Railway 
Company,  1  Rail.  C.  257. 

(d)  Per  Lord  Cottenham  in  Stone  v.  Commercial  Railway  Company,  4  My.  &  Cr. 
124. 

(«)  Reg.  v.  Birmingham  and  Oxford  Junction  Railway  Company,  15  Q.  B.  634  ; 
affirmed  in  Cam.  Scac.  overruling  Brocklebank  v.  Whitehaven  Junction  Railway 
Company,  15  Sim.  G32,  S.  C.  5  Rail.  C.  373  ;  Marquis  of  Salisbury  v.  Great  North- 
ern Railway  Company,  17  Q.  B.  840. 

(/)  Adams  v.  Blackwall  Railway  Company,  2  M'N.  &  G.  118,  per  Knight  Bruce 
L.  J.  in  Morgan  v.  Milman,  3  De  G.  M.  &  G.  36 ;  Leominster  Canal  Co.  v.  Shrews- 
bury and  Hereford  Railway  Company,  3  Jur.  N.  S.  930,  (Wood  V.  C. ;)  S.  C.  3  K. 
&  J.  654. 

(ff)  Inge  V.  Birmingham,  Wolverhampton  and  Stour  Valley  Railway  Company, 
3  De  G.  M.  &  G.  G58,  affirming  S.  C.  1  Sm.  &  G.  347;  Regent's  Canal  Company  v. 
Ware,  23  Beav.  575.  See  also  Douglass  v.  London  and  North-western  Railway 
Company,  3  K.  &  J.  173. 


WHAT    CONTRACTS    ARE    PERFORMED.  37 

for  the  estate  is  what  the  vendor  of  land  is  entitled  to,  he  has  a  complete 
remedy  at  law,  and  therefore  could  not  sustain  a  bill  for  the  specific  per- 
formance of  the  contract.  But,  on  further  consideration,  it  will  be  appa- 
rent that  damages  will  not  place  the  vendor  in  the  same  situation  as  if 
the  contract  had  been  performed  ;  for  then  he  would  have  got  rid  of  the 
land  and  of  all  the  liabilities  attaching  to  it,  and  would  have  the  net 
purchase-money  in  his  pocket ;  whereas,  after  an  action  at  law,  he  still 
has  the  land  and,  in  addition,  damages, — representing,  in  the  opinion  of 
a  jury,  the  difference  between  the  stipulated  price  and  the  price  which 
it  would  probably  fetch,  if  re-sold,  together  with  incidental  expenses  and 
any  special  damage  which  he  may  have  suffered. (A)  The  doctrine  of 
equity,  of  the  conversion  of  the  land  into  money,  and  of  the  money  into 
land  upon  the  execution  of  the  contract(i) — and  the  lien  which  the  vendor 
has  on  the  estate  for  the  *purchase-money,  apd  his  right  to  enforce  ^  ^-. ,  , 
this  in  equity,  are  additional  reasons  for  extending  the  remedy  to  L  J 
both  parties.  Accordingly,  it  is  well  established  that  the  remedy  is 
mutual,  and  that  the  vendor  may  maintain  his  bill  in  all  cases  where  the 
purchaser  could  sue  for  specific  performance  of  the  agreement,  and  this 
independently  of  any  question  on  the  Statute  of  Frauds. (Z-) 

§  24.  On  the  principle  that  damages  are  a  sufficient  satisfaction,  it  is 
now  perfectly  settled  that  specific  performance  will  not  be  enforced  of  an 
agreement  for  the  transfer  of  stock. 

§  25.  It  appears  that  in  one  instance  Lord  Hardwicke  did  grant  specific 
performance  of  such  an  agreement  :(^)  but  in  the  earlier  case  of  Cud  v. 
Rutter,(m)  Lord  Macclesfield,  overruling  a  decision  at  the  rolls,  refused 
to  perform  an  agreement  to  transfer  South  Sea  stock,  though  by  the 
decree  he  undertook  to  arrange  the  settlement  between  the  parties.  His 
lordship  assigned  three  reasons  for  this  decision  :  first,  the  nature  of  the 
subject-matter  of  the  contract;  secondly,  the  circumstance  that  the  defend- 
ant was  not  possessed  of  the  stock  at  the  time  of  the  contract;  and  thirdly, 
that  the  liability  to  sudden  rise  and  fall  in  stock  made  the  day  a  most 
material  part  of  the  contract,  and  therefore  rendered  it  improper  for  the 
court  to  carry  into  execution.  This  principle  was  adopted  by  C.  B.  Gil- 
bert,(?t)  and  stated  to  be  the  settled  doctrine  of  the  court  by  Lord 
Eldon.(o) 

§  26.  In  a  case(^)  before  Sir  John  Leach  a  bill  for  the  specific  perform- 
ance of  an  agreement  to  sell  Neapolitan  stock  was  supported  ;  but  this 
was  partly  on  the  ground  of  its  praying  the  delivery  of  the  certificates 
which  would  *constitute  the  plaintiff"  the  proprietor  of  a  certain  p  :^i  9  -, 
quantity  of  the  stock,  and  partly  because,  the  plaintiff"  not  being  L  "^  J 
the  original  scrip-holder,  but  merely  the  bearer,  it  was  doubtful  whether 

(k)  Eastern  Counties  Railway  Company  v.  Hawkes,  5  Ho.  Lords,  331,  359,  376  ; 
Lewis  V.  Lord  Lechmere,  10  Mod.  503. 

(i)  Ibid. 

(k)  CliflFord  v.  Turrell,  1  Y.  and  C.  C.  C.  138,  150  ;  Walker  v.  Eastern  Counties 
Railway  Company,  6  Ha.  594;  Kenney  v.  Wexham,  6  Mad.  355. 

(l)  See  Nutbrown  v.  Thornton,  10  Yes.  161. 

(to)  5  Yin.  Abr.  538,  pi.  21 ;  S.  C.  1  P.  Wms.  570. 

(n)  Cappur  v.  Harris,  Bunb.  135.        (0)  In  Nutbrown  v.  Thornton,  10  Yes.  161. 

Ip)  Doloret  v.  Rothschild,  1  S.  &  S.  590. 


38       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

he  would  be  able  to  maintain  his  action  at  law.  In  another  case,(g')  the 
same  judge  overruled  a  demurrer  to  a  bill  by  the  vendor  of  a  life  annuity 
payable  out  of  dividends  of  stock,  on  the  ground  that  the  purchaser  could 
clearly  maintain  such  a  bill,  and  that  the  remedy  must  be  mutual.  But 
it  seems  that  the  court  would  not  enforce  specific  performance  of  an  agree- 
ment to  sell  a  life  interest  in  funds. (r) 

§  27.  With  regard  to  railway  shares  and  investments  of  that  descrip- 
tion the  same  principle  does  not  apply.  "In  my  opinion,"  said  the  late 
vice-chancellor  of  England,(.s)  "  there  is  not  any  sort  of  analogy  between 
a  quantity  of  £3  per  cents,  or  any  other  stock  of  that  description  (which  is 
always  to  be  had  by  any  person  who  chooses  to  apply  for  it  in  the  market,) 
and  a  certain  number  of  railway  shares  of  a  particular  description,  which 
railway  shares  are  limited  in  number,  and  which,  as  has  been  observed, 
are  not  always  to  be  had  in  the  market;"  and  accordingly  specific  per- 
formance was  enforced  of  a  contract  to  sell  a  certain  number  of  railway 
shares,  the  shares  not  being  particularized.  It  may  have  been  on  this 
principle  that  Lord  King  disallowed  a  demurrer  to  a  bill  for  the  transfer 
of  York  Building  Stock  ;{t)  but  a  different  view  seems  to  have  been 
previously  entertained  by  Lord  Macclesfield,  inasmuch  as  he  dismissed  a 
bill  for  the  transfer  of  £1000  of  the  same  stock. (it) 

§  28.  A  vendor  of  railway  shares  may  maintain  a  suit  against  the  pur- 
chaser to  compel  him  to  complete  the  purchase  by  the  execution  and 
registration  of  a  proper  *transfer,(y)  and  to  indemnify  the  ven- 
L         -J  dor  against  future  calls. (ic) 

§  29.  The  court  for  the  most  part  refuses  to  interfere  in  respect  of 
chattels,  both  because  damages  are  a  sufl&cient  remedy,  and  because  the 
price  of  such  articles,  especially  of  merchandise,  varies  so  as  often  to 
render  the  specific  execution  of  contracts  for  their  sale  and  delivery  an 
act  of  injustice,  entailing  perhaps  ruin  on  one  side,  when  upon  an  action 
that  party  might  not  have  paid  perhaps  above  a  shilling  damages. (a;)  As 
these  principles  however  do  not  apply  to  all  cases  of  chattels,  exceptions 
arise  which  we  shall  now  consider. 

§  30.  When  the  chattel  in  question  is  unique, — when  there  is,  over 
and  above  the  market  value,  that  which  has  been  called  the  prethim 
affectionis,  the  court  has  interfered,  and  not  left  the  party  to  his  legal 
remedy.  The  leading  case  in  this  branch  of  the  law  is  Pusey  v.  Pusey,(?/) 
in  which  the  heir  of  the  family  of  Pusey  recovered  possession  by  a  bill 
in  equity  of  the  celebrated  Pusey  horn  :  the  grounds  of  the  decision  are 

(q)  Withy  v.  Cottle,  1  S.  &  S.  174.  (?•)  Brealey  v.  Collins,  You.  317,  330. 

{s\  Duncuft  V.  Albreclit,  12  Sim.  189,  199.     See  Jackson  v.  Cocker,  4  Beav.  59. 

{t)  Colt  V.  Nettervill,  2  Sim.  304. 

(m)  Dorison  v.  Westbrook,  5  Yin.  Abr.  540,  pi.  22. 

(v)  Shaw  V.  Fisher,  2  De  G.  &  Sm.  11 ;  5  De  G.  M.  &  G.  596. 

\w)  Wynne  v.  Price,  3  De  G.  &  Sm.  310  ;  Walker  v.  Bartlett,  18  C.  B.  845. 

(x)  Per  Lord  Hardwicke  iu  Buxton  v.  Lister,  3  Atky.  384.  In  Norton  v.  Serle, 
Finch,  149,  Lord  Nottingham  specifically  performed  a  charter-party  by  directing 
the  payments  to  be  made  in  pursuance  of  it.  See  also  Claringbould  v.  Curtis,  21 
L.  J.  Ch.  541.  Where  the  delivery  of  chattels  is  only  part  of  a  contract  otherwise 
enforceable,  the  contract  may  be  performed.  Marsh  v.  Milligan,  3  Jur.  N.  S.  979, 
(Wood  V.  C.) 

(y)  1  Vern.  273. 


WHAT    CONTRACTS    ARE    PERFORMED.  39 

insufficieutly  reported,  but  the  case  "  turned,"  to  quote  Lord  Eldou's 
language  in  respect  of  it,(^)  upon  the  pretium  affection  is,  independent  of 
the  circumstance  as  to  tenure,  which  could  not  be  estimated  in  damages." 
This  has  been  followed  by  other  similar  cases,  one  having  relation  to  an 
ancient  silver  altarpiece,  remarkable  for  a  Greek  inscription  and  dedication 
to  IIercule8,(a)  another  to  a  tobacco-box  of  a  remarkable  and  p*-|/i-i 
^peculiar  kind,(i)  and  another  to  masonic  dresses  and  orna-  L  J 
ments.(c) 

§  31.  Most  of  these  cases  were  rather  in  the  nature  of  proceedings 
arising  from  tort  than  contract,  but  there  seems  no  doubt  that  the  prin- 
ciple of  the  exception  would  be  equally  applicable  in  both  cases. 

§  82.  The  Common  Law  Procedure  Act,  1854,  having,  by  the  78th 
section,  given  to  the  courts  of  common  law  power  in  actions  of  detinue 
to  order  that  execution  shall  issue  for  the  return  of  the  chattel  detained, 
without  giving  the  defendant  the  option  of  retaining  such  chattel  upon 
paying  the  value  assessed,  the  necessity  of  resorting  to  a  court  of  equity 
in  these  cases  appears  to  have  ceased,  though  the  jurisdiction  no  doubt 
remains  intact. 

§  33.  Closely  allied  with  the  instances  of  unique  chattels  are  those 
cases  which  seem  to  establish  that  contracts  for  the  delivery  of  chattels 
may  be  enforced,  when  the  defendant  can  supply  them  in  such  a  way  as 
is  essential  to  the  proceedings  of  the  plaintiff,  and  no  one  else  can  :  as  if 
a  man  were  to  contract  with  a  shipbuilder  for  the  supply  of  timber,  the 
shipbuilder  being  under  contract  to  complete  a  ship  by  a  given  time,  for 
which  the  supply  of  the  timber  by  the  defendant  was  essential.  But 
this  will  not  be  extended  to  mere  questions  of  convenience,  as  the  supply 
of  coal  from  an  adjoining  colliery,  when  plenty  of  other  coal  can  be  pro- 
cured in  the  neighbourhood. (c/) 

§  34.  Cases  might  probably  arise  in  which  the  court  would  interfere 
in  respect  of  chattels  connected  with  the  enjoyment  of  an  estate,  where 
but  for  such  connection  it  *would  not  exercise  jurisdiction.  In  r-^^  -,  -  -, 
one  case(c)  Lord  Eldon  made  an  order  specifically  to  restore  to  a  L  -• 
tenant  the  stock  on  a  farm,  which  had  been  seized  by  the  landlord  under 
a  distress  and  bill  of  sale ;  his  lordship  holding  that  under  the  circum- 
stances of  that  case,  there  was  an  entire  contract  by  which  the  landlord 
agreed  to  let  the  tenant  have  both  the  estate  and  the  chattels,  the  enjoy- 
ment of  the  chattels  being  requisite  for  the  enjoyment  of  the  estate. 

§  35.  This  appears  to  have  been  one  ground  on  which  the  court  an- 
ciently enforced  agreements  to  build  in  certain  cases  :  as,  where  the 
father  entered  into  articles  with  a  builder,  and  died  before  the  execution 

(z)  In  Nutbrown  v.  Thornton,  10  Yes.  163. 

(a)  Duke  of  Somerset  v.  Cookson,  3  P.  Wms.  390. 

(6)  Fells  V.  Read,  3  Yes.  TO. 

(c)  Lloyd  V.  Loaring,  6  Yes.  773.  See  also  Savill  v.  Tancred,  1  Ves.  Sen.  101, 
S.  C.  3  Sw.  141  n.  Lady  Arundell  v.  Phipps,  10  Ves.  139.  Lowther  v.  Lord 
Lowther,  13  Ves.  95.  Is  a  ship  within  this  principle?  see  Lynn  v.  Chaters,  2  Ke 
521. 

((f)  Per  Lord  Hardwicke  in  Buxton  v.  Lister,  3  Atky.  383,  compared  with  Pol- 
lard V.  Clayton,  1  K.  &  J.  462. 

(e)  Nutbrown  v.  Thornton.  10  Yes.  159. 


[*16] 


40   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

of  the  contract,  the  heir  was  allowed  to  sue  the  personal  representative 
of  his  father  and  the  builder,  the  contract  savouring  of  the  realty//) 
So,  in  another  case,  an  agreement  to  build  was  specifically  enforced  against 
a  tenant  who,  having  undertaken  to  rebuild  the  farm-house,  had  done 
so  on  his  own  soil  instead  of  his  landlord's. (^) 

§  36.  From  the  specific  performance  in  respect  of  chattels  raust  be 
discriminated  the  cases  whei'e  a  trust  has  been  constituted  in  respect  of 
personal  chattels :  for  the  nature  of  the  subject-matter  is  no  obstacle  to 
the  interference  of  the  court  to  compel  execution  of  the  trust,  whether 
it  be  one  constituted  by  direct  declaration,  or  a  constructive  trust  arising 
from  the  act  of  the  parties. (A)  The  court  will  accordingly  restrain  im- 
proper dealings  by  an  agent  with  chattels,  though  they  may  be  of  no 
peculiar  or  intrinsic  value.  (A 

§  37.  It  has  been  laid  down  that  where  the  contract,  though  personal, 
is  executory,  specific  performance  will  be  decreed  when  the  damages  at 
law  cannot  accurately  represent  *the  value  of  the  contract  to  either 
party.(/i:)  The  cases  we  have  lately  considered  maybe  regarded 
as  particular  instances  of  this  general  rule.  But  it  has  been  carried  into 
effect  in  some  other  ways.  Thus,  where  the  contract  was  for  the  sale  of 
debts  proved  under  two  commissions  of  bankrupt.  Sir  John  Leach  gi*ant- 
ed  specific  performance,  considering  that  to  compel  the  plaintiff  to  accept 
damages  would  be  to  compel  him  to  sell  these  dividends,  which  were  of 
unascertained  value,  at  a  conjectural  price. (?) 

§  38.  In  one  case,  cited  by  Lord  Hardwicke,  articles  for  the  sale  of 
eight  hundred  tons  of  iron,  to  be  paid  for  by  instalments,  at  periods 
running  through  some  years,  were  specifically  enforced. (m)  The  case 
appears  to  have  been  approved  by  his  lordship,  but  has  recently  been 
doubted  by  Vice-Chancellor  Wood,  who  remarked  on  the  absence  of  any 
case  for  the  sale  of  mere  goods  being  supported  on  the  ground  of  their 
being  to  be  delivered  by  instalments. (w) 

§  39.  When  the  contract  is  from  its  nature  such  that  the  court  cannot 
enforce  its  performance,  it  is  necessarily  no  subject  of  its  jurisdiction  in 
that  respect. 

§  40.  On  this  principle  the  court  will  not  prohibit  the  making  of  a 
secret  medicine  ;  for  if  it  be  secret,  then  the  court  cannot  tell  whether  it 
has  been  infringed  or  not,(o)  nor  will  it  for  the  same  reason  direct  the 
specific  performance  of  covenants  in  a  farming  lease,  for  "  how,"  said  Lord 
Northington,  "  can  a  master  judge  of  repairs  in  husbandry  ?"Q^) 

§  41.  And  so  too  the  court  will  not  interfere  to  enforce  a  covenant  by 

(/)  Holt  V.  Holt,  2  Vern.  322,  per  Lord  Hardwicke  in  Rook  v.  Warth,  1  Yes. 
Sen.  461. 

(g)  Pembroke  v.  Thorpe,  3  Sw.  431  n. 

(h)  Wood  V.  Rowcliffe,  3  Ha.  304  ;  S.  C.  2  Phil.  382  ;  Pooley  v.  Bubb,  14  Beav.  34. 

(i)  Wood  V.  Rowcliffe,  ubi  supra.  (k)  Adderley  v.  Dixon,  1  S.  &  S.  607. 

(I)  S.  C.     See  also  per  Wood,  V.  C,  in  Pollard  v.  Clayton,  1  K.  &  J.  462. 

(m)  Taylor  v.  Neville,  cited  3  Atky.  384. 

(n)  Pollard  v.  Clayton,  1  K.  &  J.  462. 

(o)  Newberry  v.  James,  2  Mer.  446;  Williams  v.  Williams,  3  Mer.  157. 

(p)  Rayner  v.  Stone,  2  Ed.  128. 


WHAT    CONTRACTS    ARE    PERFORMED.  41 

means  of  injunction,  where  the  acts  complained*  of  as  breaches  r^t:-!--! 
are  frequent,  and  the  court  could  not  ascertain  whether  there  has  L  -• 
in  each  case  been  a  breach  without  an  action  at  law ;  as  of  a  covenant  not 
to  sell  water  from  a  certain  well  to  the  plaintiflF's  injury. (j) 

§  42.  The  incapacity  of  the  court  to  execute  the  contract  limits  its 
jurisdiction  in  cases  of  agreement  for  the  sale  of  the  goodwill  of  a  busi- 
ness. For  where  the  contract  has  respect  to  a  goodwill  alone,  unconnect- 
ed with  business  premises  the  court  refuses  specific  performance,  by 
reason  of  the  uncertainty  of  the  subject-matter,  and  the  consequent  inca- 
pacity of  the  court  to  give  specific  directions  as  to  what  is  to  be  done  to 
transfer  it.(r)  But  where  the  goodwill  is  entirely  or  mainly  annexed  to 
the  premises,  and  the  contract  is  for  the  sale  of  the  premises  and  good- 
will, the  contract  may  be  enforced. (s)  For  in  that  case  the  goodwill  is 
merely  the  advantage  attached  to  the  possession  of  the  house  or  other 
place  of  business,(<) — "  the  probability,"  to  use  the  words  of  Lord 
Eldon,r») ''  that  the  old  customers  will  resort  to  the  old  place," — together 
with  the  right  which  arises  to  the  purchaser  to  restrain  the  vendor  from 
setting  up  anew,  or  continuing  the  identical  trade  he  has  contracted  to 
sell, — but  without  any  right,  independently  of  stipulation,  to  prevent  the 
vendor's  setting  up  a  similar  business.(y)  In  the  case  of  agreements  for 
the  sale  of  a  business  of  an  attorney,  the  legality  of  stipulations  comprised 
in  them,  for  the  purpose  of  giving  to  the  party  to  carry  on  the  business 
the  advantage  of  the  name  *or  of  the  recommendation  of  the  party  p^-io-i 
not  engaged  in  it,  has  been  questioned  by  the  highest  authorities,  L  -• 
including  Lord  Eldon,  Sir  William  Grant,  and  Lord  Justice  Knight 
Bruce. (ir)  But  it  seems  to  be  now  established,  not  only  that  such  trans- 
actions are  valid  at  law,(:c)  but  that  they  may  be  specifically  executed  by 
injunction  or  otherwise,  by  courts  of  equity. (y) 

§  43.  The  court  will  not  enforce  a  contract  which  is  in  its  nature  re- 
vocable ;  for  its  interference  in  such  a  case  would  be  idle,  inasmuch  as 
what  it  had  done  might  be  instantly  undone  by  either  of  the  parties. 

§  44.  Thus  where  the  registrar  of  a  consistory  court  agreed  to  grant 
a  deputation  of  his  office,  it  was  held  that  such  a  deputation  was  in  its 
nature  revocable,  and  therefore  could  not  be  enforced  by  the  eourt.T^;) 

§  45.  It  is  on  the  same  principle  that  the  court  generally  refuses  to 

(q)  Collins  v.  Plumb,  16  Yes.  454.  See  also  City  of  London  v.  Nash,  3  Atkv. 
512,  515. 

(r)  Baxter  v.  Conolly,  1  J.  &  W.  576 ;  Bozon  v.  Farlow,  1  Mer.  459.  Coslake 
V.  Till,  1  Russ.  376. 

(s)  Darbey  v.  Whittaker,  4  Drew.  134,  139,  140. 

(t)  Chissum  v.  Dewes,  5  Russ.  29;  Mummery  v.  Paul,  1  C.  B.  316,  326;  and  see 
further,  as  to  the  nature  of  a  good-will.  Potter  v.  Commissioners  of  Revenue,  10 
Exch.  147  :  Allison  v.  Monkwearmouth,  4  Ell.  &  Bl.  13. 

(u)  In  Crutwell  v.  Lye,  17  Ves.  346. 

(v)  Crutwell  V.  Lye,  17  Ves.  335 ;  Shackle  v.  Baker,  14  Ves.  468. 

(w)  Per  Lord  Eldon  in  Candler  v.  Carden,  Jac.  231 ;  Bozon  v.  Farlow,  1  Mer. 
459;  Thornbury  v.  Bevill,  1  Y.  &  C.  C.  C.  584.  See  Gilfillan  v.  Henderson,  2  CI. 
&  Fin.  1. 

(z)  Bunn  v.  Guy,  4  East,  190. 

(y)  Whittaker  v.  Howe,  3  Bear.  383  ;  Aubin  v.  Holt,  2  K.  &  J.  66. 

(z)  Wheeler  v.  Trotter,  3  Sw.  174  n.  See  also  Sturge  v.  Midland  Railway  Com- 
pany, Week.  Rep.  1857-1858,  233,  (Stuart  V.  C.) 


42   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

interfere  in  cases  of  agreements  to  enter  into  partnership,  whicli  do  not 
specify  the  duration  of  the  partnership, — that  relation,  unless  otherwise 
provided,  being  dissoluble  at  the  will  of  either  party. (a)  There  is  indeed 
some  authority  to  the  contrary  of  this  proposition,  consisting  of  a  dictum 
of  Lord  Hardwicke's(Z))  in  general  terms,  and  two  or  three  cases(c)  in 
which  specific  performance  of  such  agreements  seems  to  have  been  en- 
forced, but  with  regard  to  which  it  does  not  appear  whether  the  partner- 
ships thus  constituted  were  for  a  term  or  not;  and  it  is  indeed  said  that 
Lord  Eldon  was  not  quite  satisfied  with  his  decision  in  the  case  quoted 
as  establishing  the  principle. (f?) 

r*1QT  *^  '^^'  ^  doctrine,  however,  appears  to  be  generally  accept- 
L  J  ed  as  that  of  the  court.  Thus  in  a  recent  case(e)  before  the 
master  of  the  rolls,  the  principle  was  acted  on  :  the  defendant  entered 
into  an  agreement  with  the  plaintifi"  company,  to  take  a  certain  number 
of  shares  and  to  execute  the  deed  of  settlement  when  required  ;  and  of 
this  agreement  the  court  refused  specific  performance,  because  the  defen- 
dantmight,  by  the  rules  of  the  company,  have  ceased  again  to  be  a  partner 
within  fourteen  days  after  becoming  such. 

§  47.  It  is  on  the  same  reasoning  that  the  court  declines  to  perform 
an  agreement,  if  such  covenants  must  be  introduced  into  the  instrument 
to  be  executed  that  the  party  resisting  the  performance  may  immediately 
take  advantage  of  them  to  deprive  the  other  of  all  benefit  under  the  in- 
strument; as,  for  instance,  an  agreement  for  a  lease  which  is  to  contain 
a  proviso  for  re-entry  on  breach  of  a  covenant,  which  the  plaintiff  had 
already  broken. (/) 

§  48.  In  some  old  cases  the  court  entertained  suits  in  respect  of  build- 
ing contracts  :  and  what  has  been  considered  the  earliest  trace  of  the 
jurisdiction  in  specific  performance  is  a  dictum  of  Justice  Grenney  in  the 
8  Edward  IV.,  that  a  promise  to  build  a  house  would  be  specifically  en- 
forced.(^)  Lord  Hardwicke  also  maintained  this  view  of  the  jurisdiction 
of  the  court. (/t)  But  it  is  now  clearly  settled  that,  subject  to  certain  ex- 
ceptions, the  court  will  not  interfere  in  cases  of  contracts  to  build  or 
repair,(i)  both  because  specific  performance  is  "  decreed(^)  only  where 
r*9m  *^^  P^'^ty  wants  *the  thing  in  specie  and  cannot  have  it  any  other 
L  ""  J  way,"  and  because  such  contracts  are  for  the  most  part  too  uncer- 
tain to  enable  the  court  to  carry  them  out.(A 

§  49.  For  the  first  of  the  reasons  stated.  Sir  William  Grant  refused 
specific  performance  of  a  covenant  to  make  good  a  gravel-pit. (m) 

(a)  Hercy  v.  Birch,  9  Ves.  357.  (b)  In  Buxton  v.  Lister,  3  Atky.  385. 

(c)  Anon.  2  Ves.  Sen.  629;  Anon.  1  Mad.  Ch.  411,  n. ;  Hibbert  v.  Hibbert, 
Colly.  Partn.  133.  (d)   1  Mad.  Ch.  411,  n. 

(e)  Sheffield  Gas  Consumers'  Company  v.  Harrison,  17  Beav.  294.  See  also  as 
to  agreements  to  form  a  company,  Stocker  v.  Wadderburn,  3  K.  &  J.  393. 

(/)  Per  Sir  William  Grant,  in  Jones  v.  Jones,  12  Ves.  188. 

Iff)   1  Mad.  Ch.361. 

{h)  Buxton  V.  Lister,  3  Atky.  385 ;  City  of  London  v.  Nash,  3  Atky.  512  ;  S.  C. 
1  Ves.  Sen.  12. 

(i)  Paxton  v.  Newton,  2  Sm.  &  Gif.  437. 

(k)  Per  Lord  Kenyon  in  Errington  v.  Aynesley,  2  Bro.  C.  C.  343 ;  S.  C.  2  Dick. 
692.     Accordingly  Lucas  v.  Commerford,  3  Bro.  C.  C.  166. 

(l)  Mosely  v.  Virgin,  3  Ves.  184.  (?»)  Flint  v.  Brandon,  8  Ves.  159. 


WHAT    CONTRACTS    ARE    PERFORMED.  43 

§  50.  Oa  the  ground  of  both  of  these  reasons,  specific  performance 
was  refused  in  a  recent  case(w)  of  an  agreement  for  the  execution  of  a 
branch  railway,  which  was  entered  into  during  the  pendency  of  the  bill 
before  parliament,  and  when  several  of  the  directors  had  thoughts  of 
withdrawing  the  bill,  and,  as  the  plaintiffs  alleged,  would  have  done  so, 
but  for  the  agreement  in  question  :  and  in  other  cases,  specific  perfor- 
mance has  been  refused  of  agreements  for  the  working  of  quarries(o)  and 
coal  mines. (p) 

§  51.  There  are  however  exceptional  cases  on  sueh'contracts,  in  respect 
of  which  the  court  will  interfere.  Lord  Rosslyn,  in  a  judgment  which 
appears  never  to  have  been  overruled,  maintained  that  where  an  agree- 
ment for  building  is  in  its  nature  defined,  the  court  might  without  much 
difficulty  entertain  a  suit  for  its  performance  ^[q)  and  Mr.  Justice  Story 
argues  in  support  of  this  view.M  It  may  also  be  added  that  in  Scotland 
many  contracts  to  build  are  specifically  performed,  in  respect  of  which 
equity  would  decline  jurisdiction  in  England, — the  Scotch  courts  appoint- 
ing some  properly  qualified  person,  under  whose  superintendence  the 
work  is  directed  to  be  executed. (.s) 

§  52.  But  whether  the  court  will,  or  will  not,  interfere  to  enforce  all 
such  contracts  where  definite,  it  appears  to  be  settled  that  it  will  assume 
jurisdiction  where  we  have  the  *two  circumstances, — first,  that  r:^e^-i  -, 
the  work  to  be  done  is  defined,  and  secondly,  that  the  plaintiflF  L  "^  J 
has  a  material  interest  in  its  execution,  which  cannot  adequately  be  com- 
pensated for  by  damages.  Thus  the  court  enforced  on  a  railway  company 
an  agreement  to  make  and  keep  an  archway  through  their  railway  to 
connect  lands  of  the  plaintiff,  severed  by  the  railway  :(^)  and  in  another 
ease(M)  it  specifically  carried  out  a  similar  agreement,  although  its  terms 
were  more  general  and  difficult  to  execute. 

§  53.  To  the  same  principle  we  may  perhaps  refer  a  case(i;)  in  which 
Sir  John  Leach  compelled  a  defendant  to  alter  the  elevation  of  a  house 
which  had  been  erected  in  contravention  of  a  covenant ;  and  another,(j<;) 
in  which  Lord  Eldon,  though  expressing  a  difficulty  in  decreeing  repairs 
to  be  done  affimatively,  yet  by  means  of  an  injunction,  in  fact  granted 
performance  of  a  covenant  to  keep  a  canal  and  arch  in  repair  for  the 
benefit  of  the  lessee  of  a  mill  interested  in  them. 

§  54.  The  part-performance  of  a  contract  may  give  the  court  jurisdic- 
tion where  it  would  not  otherwise  have  it.  Thus,  where  the  plaintiff  had 
sold  lands  to  the  defendants,  they  by  the  deed  of  sale  covenanting  forth- 
with to  make  a  road  and  erect  a  market-house  on  the  land,  and  they, 
entered  and  made  the  road,  but  neglected  to  build  the  market-house,  V 

(w)  South  Wales  Railway  Company  v.  Wythes,  1  K.  &  J.  186  ;  S.  C,  5  De  G.  M. 
&  G.  880. 

(o)  Booth  V.  Pollard,  4  Y.  &  C.'Ex.  61.      (p)  Pollard  v.  Clayton,  1  K.  &  J.  462. 

(q)  Mosely  v.  Virgin,  3  Ves.  184.  See  also  Brace  v.  Wehnert,  Week.  Rep.  1857- 
1858,  425,  (M.  R.) 

(r)  Eq.  Juris,  g  728. 

(s)  Clark  v.  Glasgow  Assurance  Company,  1  M'Queen,  668. 

(i)  Storer  v.  Great  Western  Railway  Company,  2  Y.  &  C.  C.  C.  48. 

(m)  Saunderson  v.  Cockermouth  and  Workington  Railway  Company,  11  Beav. 
497. 

(v)  Franklyn  v.  Tuton,  5  Mad.  469.  (iv)  Lane  v.  Newdigate,  10  Ves.  192. 


44:       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

Vice-Chancellor  Wigram  observed  that  the  defendants  having  had  the 
benefit  of  the  contract  in  specie,  the  court  would  go  any  length  that  it 
could  to  compel  them  to  perform  their  contract  in  specie. (x)  It  is  to  be 
remarked  that  both  in  this  case  and  in  the  one  previously  quoted  of 
r*99n  *Storer  v.  Great  Western  Kailway  Company,(y)  the  plaintiff  hav- 
L  ''"' J  ing  parted  with  the  land,  had  no  opportunity  of  doing  the  work 
which  the  defendants  had  contracted  to  do,  and  so  ascertaining  the  amount 
of  damages  sustained  by  their  non-performance  jfz)  and  it  seems  that  in 
no  case  will  part-performance  enable  the  court  to  intervene  where  it  has 
no  jurisdiction  in  the  original  subject-matter  of  the  contract. (a) 

§  55.  Where  the  act  alleged  as  part-performance  is  one  proper  to  be 
brought  before  a  jury  and  can  be  answered  in  damages,  non-performance 
of  the  rest  of  the  contract  does  not  constitute  that  fraud  which  is  the 
origin  of  the  court's  jurisdiction  in  cases  of  part-performance  in  this  res- 
pect, as  well  as  when  treated  as  an  exception  to  the  Statute  of  Frauds. (Z>) 

§  56.  The  relation  established  by  the  contract  of  hiring  and  service 
is  of  so  personal  and  confidential  a  character  that  it  is  evident  such  con- 
tracts cannot  be  specifically  enforced  by  the  court  against  an  unwilling 
party  with  any  hope  of  ultimate  and  real  success ;  and  accordingly  the 
court  now  refuses  to  entertain  jurisdiction  in  regard  to  them. 

§  57.  In  former  times  this  seems  to  have  been  otherwise.  In  a  case(c) 
decided  by  Lord  Cowper  and  the  house  of  lords,  there  was  an  agreement 
by  which  a  skilled  person  had  bound  himself  during  his  life  as  manager 
and  overseer  to  a  company  engaged  in  the  manufacture  of  brass,  and  th- 
company  had  agreed  to  pay  him  a  certain  salary  and  3s.  6c?.,  for  every 
hundredweight  of  brass  wire  made  by  him  or  any  other  person  for  them 
during  his  life  ;  on  a  bill  by  the  manager,  Lord  Cowper  decreed  the 
P^po-i  payments  according  *to  the  articles  for  past  services,  and  specific 
L  "  J  performance  of  them  for  the  future,  by  the  plaintiff's  again  repair- 
ing to  the  works  and  acting  according  to  the  articles,  if  the  defendants 
should  require  the  same.  The  appeal  from  this  decree  to  the  house  of 
lords  was  by  the  plaintiff  on  a  point  of  the  construction  of  the  agreement 
as  to  the  3s.  6c?.  per  ton,  which  resulted  in  a  modification  of  the  decree 
according  to  his  contention.  And  so  in  another  case(f?)  Lord  Hardwicke 
specifically  enforced  an  agreement  by  the  East  India  Company  to  employ 
a  man  as  a  packer. 

§  58.  But  the  difliculty  of  carrying  out  such  contracts  in  specie  is  now 
admitted  by  the  court.     Thus,  in  a  recent  case,(e)  where  the  plaintiffs 

(z)  Price  v.  Corporation  of  Penzance,  4  Ha.  506.  See  also  Saunderson  v.  Cock- 
ermouth  and  Workington  Railway  Company,  11  Beav.  497  ;  Pembroke  v.  Thorpe, 
3  Sw.  437,  n.  (y)  2  Y.  &  C.  C.  C.  48. 

(z)  Per  Wood  V.  C,  in  South  Wales  Railway  Company  v.  Wythes,  1  K.  &  J.  200. 

(rt)  Kirk  V.  Bromley  Union,  2  Phil.  640,  648. 

(6)  South  Wales  Railway  Company  v.  Wythes,  1  K.  &  J.  186,  and  see  infra, 
2  405,  et  seq. 

(c)  Ball  V.  Coggs,  I  Bro.  P.  C.  140.  This  case  involves  the  validity  of  contracts 
of  service  for  life;  as  to  which  see  also  Wallis  v.  Day,  2  M.  &  W.  273. 

(d)  East  India  Company  v.  Vincent,  2  Atky.  83. 

(e)  Johnson  v.  Shrewsbury  and  Birmingham  Railwav  Company,  3  De  G.  M.  & 
G.  914. 


WHAT    CONTRACTS    ARE    PERFORMED.  45 

had  contracted,  for  a  specified  sum,  to  work  the  line  of  a  railway  company 
and  to  keep  the  engines  and  rolling  stock  in  repair,  the  court,  consider- 
ing this  to  be  an  agreement  for  services,  refused  to  enforce  it.  "  We  are 
asked,"  said  Lord  Justice  Knight  Bruce, (/)  '<  to  compel  one  person  to 
employ  against  his  will  another  as  his  confidential  servant,  for  duties 
with  respect  to  the  due  performance  of  which  the  utmost  confidence  is 
required.  Let  him  be  one  of  the  best  and  most  competent  persons  that 
ever  lived,  still,  if  the  two  do  not  agree,  and  good  people  do  not  always 
agree,  enormous  mischief  may  be  done." 

§  59.  So  in  a  previous  case(^)  a  grant  having  relation  to  an  oflSce  of  a 
personal  and  confidential  character,  was  held  to  be  incapable  of  being 
specifically  enforced  ;  and  in  another  instance, (A)  where  an  indenture  was 
held  to  constitute  the  relation  of  master  and  servant,  and  not  of  partner, 
Lord  Chancellor  Truro  dissolved  an  injunction  which  had  been  previously 
granted,  restraining  the  defendant  from  excluding  the  plaintifi"  from  the 
management  of  the  business. 

*§  60.  It  is  no  objection  in  specific  performance,  that  the  sub-  p^9_( -i 
ject-matter  with  which  the  contract  deals  was  not  originally  L  "^  J 
within  the  jurisdiction  of  the  court,  as  the  contract  itself  may  give  the 
court  jurisdiction  in  specific  performance,  just  as  it  gives  a  court  of  law 
jurisdiction  to  award  damages.  The  original  jurisdiction  in  respect  of 
the  boundaries  of  our  plantations  in  North  America  resided  in  the  king 
and  council ;  but  a  contract  respecting  them  having  been  entered  into 
between  adjoining  proprietors,  was  held  by  Lord  Hardwicke  to  give  the 
court  jurisdiction ;( A  and  on  the  same  principle,  although  the  court  has 
no  jurisdiction  in  matrimonial  causes,  yet,  where  there  has  been  an  agree- 
ment or  covenant,  it  may  interfere  to  enforce  the  execution  of  a  proper 
separation  deed,  or  to  restrain  the  breach  of  a  covenant  contained  in  it.(/i) 

§  61.  And  so  again  contracts  entered  into  abroad  may,  by  the  residence 
of  the  parties  in  this  country,  fall  under  the  jurisdiction  of  equity  and 
be  specifically  enforced;  thus,  for  instance,  a  marriage  contract  made  in 
France  was  specifically  executed  here,  the  parties  to  it  having  come  to 
this  country  as  refugees. (Z) 

§  62.  But  where  the  court  is  called  upon  to  exercise  this  jurisdiction 
in  respect  of  foreign  contracts,  the  question  is  not  only  whether  the  con- 
tract is  valid  according  to  the  law  of  the  country  in  which  it  was  entered 
into,  but  whether  or  not  it  is  consistent  with  the  law  and  policy  of  this 
country. (??i)  It  is  further  to  be  observed  that  the  contract,  if  from  its 
nature  it  falls  within  the  fourth  section  of  the  Statute  of  Frauds,  must 
satisfy  the  terms  of  that  section,  though,  in  the  country  where  the  con- 
tract was  made,  it  *might  be  valid  without  writing  :  for  that  sec-  p:^.-)-  -, 
tion  applies  to  the  procedure,  and  not  to  the  solemnities  of  the  •-  ""^  J 
contract.  («) 

(/)  p.  926.  (ff)  Pickering  t.  Bishop  of  Elv,  2  Y.  &  C.  C.  C.  249. 

(h)  Stocker  v.  Brocklebank,  3  M'N.  &  G.  250. 

(i)  Pen  V.  Lord  Baltimore,  1  Yes.  Sen.  444. 

(k)  Wilson  V.  Wilson,  1  Ho.  Lords,  538  ;  S.  C.  14  Sim.  405  ;  5  Ho.  Lords,  40. 

(/)  Foubert  v.  Turst,  1  Bro.  P.  C.  129. 

(m)  Hope  V.  Hope,  26  L.  J.  Ch.  417,  (L.  J.  J.) 

(n)  Leroux  v.  Brown,  12  C.  B.  801. 

November,  1858. 


46       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  63.  This  jurisdiction  is  not  confined  to  cases  of  personal  contracts, 
but  extends  to  tliose  relating  to  real  or  immovable  property,  when  the 
parties  who  have  entered  into  it  are  resident  within  the  jurisdiction  of 
the  court;  ceqiiitas  agit  in  personam.  Therefore  where  Sir  Philip  Car- 
teret, the  owner  of  the  Island  of  Sark,  had  mortgaged  it,  and  a  bill  was 
brought  against  him  by  the  mortgagee  for  foreclosure,  a  plea  put  in  by 
the  defendant,  that  the  island  was  not  within  the  jurisdiction  of  chan- 
cery, was  overruled. (o) 

§  64.  It  must  be  observed  that  the  court  will  never  lend  its  assistance 
to  enforce  the  specific  execution  of  contracts  which  are  voluntary,  or 
where  no  consideration  emanates  from  the  party  seeking  performance,(p) 
even  though  they  may  have  the  legal  consideration  of  a  seal ;  and  this 
principle  applies,  whether  the  contract  insisted  on  be  in  the  form  of  an 
agreement,  a  covenant,  or  a  settlement. (^) 

§  65.  Where  a  plaintiff  had  proceeded  at  law  and  recovered  damages 
for  breach  of  the  contract,  he  cannot  afterwards  sue  in  equity  for  its 
specific  performance. (/■) 


[*26]  *CH  AFTER   II. 

OF   CONTRACTS   WITH   A   PENALTY. 

§  66.  From  the  principles  stated  in  the  last  chapter,  it  appears  that 
where  an  agreement  is  substantially  performed  by  the  payment  of  a  sum 
of  money,  the  jurisdiction  of  law  being  adequate,  equity  will  not  interfere. 
Hence,  in  cases  where  a  clause  for  the  payment  of  a  penal  sum  is  added 
to  an  agreement,  the  question  arises  whether  the  contract  will  be  satisfied 
by  its  payment,  or  whether  it  will  not.  In  the  former  case,  equity  will 
not  interfere ;  in  the  latter,  it  may. 

§  67.  The  question  always  is,  What  is  the  agreement  ?  Is  it  that  one 
certain  thing  shall  be  done,  with  a  penalty  added  to  secure  its  perfor- 
mance ?  or  is  it  that  one  of  two  things  shall  be  done,  namely,  the  per- 
formance of  the  act  or  the  payment  of  the  sum  of  money  ?  If  the  former, 
the  fact  of  the  penalty  being  annexed  will  not  prevent  equity  from  en- 
forcing performance  of  the  very  thing,  and  thus  carrying  out  the  inten- 

(o)  Toller  v.  Carteret,  2  Vern.  495 ;  Argl.isse  v.  Muscharap,  1  Vern.  75  ;  Jack- 
son V.  Petrie,  10  Ves.  164;  Lord  Portarlington  v.  Soulby,  3  My.  &  K.  104,  108  : 
Story,  Eq.  Juris.  §  743. 

{p)  Groves  v.  Groves,  3  Y.  &  J.  163;  Houghton  v.  Lees,  1  Jur.  N.  T.  862, 
(Stuart,  V.  C. ;)  Ord  v.  Johnston,  id.  1063,  (Stuart,  V.  C.) 

{q)  Jeffreys  v.  Jeffreys,  Cr.  &  Ph.  138;  Hervey  v.  Audland,  14  Sim.  531.  See 
the  older  cases  discussed  in  1  Mad.  Ch.  413. 

(r)  Sainter  v.  Ferguson,  1  M'N.  &  G.  286.  As  to  orders  for  the  plaintiff  to  elect, 
see  Ambrose  v.  Nott,  2  Ha.  649;  Penning  v.  Humphery,  4  Beav.  1 ;  Gedye  v.  Duke 
of  Montrose,  Week.  Rep.  1856-1857,  537,  ("Wood,  V.  C. ;)  Seton  Decrees,  492  et 
seq. 


CONTRACTS  WITH  A  PENALTY,  47 

tion  of  the  parties  :(«)  if  the  latter,  the  contract  is  satisfied  by  the  pay- 
ment of  a  sura  of  money,  and  there  is  no  ground  for  equitable  procedure 
against  the  party  having  the  election. 

§  G8.  The  distinction  before  us  is  the  same  as  that  between  a  penalty 
and  liquidated  damages,  which  arises  at  law  on  deeds  or  agreements,  but 
in  equity  also  on  bonds.  *The  distinction  being  cognizable  in  r-.^..-)--, 
both  courts  in  the  former  case,  is  of  itself  no  ground  to  support  L  "^  J 
a  bill  in  equity. (i) 

§  09.  In  deciding  on  this  question,  the  court  will  look  at  the  whole 
agreement,  and  will  not  be  guided  by  the  mere  words  in  which  the  penal 
sum  is  expressed.  Thus,  where  the  word  "  penalty"  is  used,  the  court 
may  treat  the  sum  as  liquidated  damages, (c)  and  where  the  words  "liqui- 
dated damages,"  as  a  penalty.(fZ)  Nor  is  it  material  that  the  contract 
may  be  alternative  in  its  form,  if  the  court  can  clearly  see  that  it  is 
essentially  an  agreement  to  do  one  of  the  alternatives  :  so  that  where 
there  was  an  agreement  to  renew  a  certain  lease,  with  an  addition  of 
three  years  to  the  original  term,  or  to  answer  the  want  thereof  in 
damages,  the  court  decreed  specific  performance  of  the  lease,  the  second 
alternative  only  expressing  what  the  law  would  imply. (e)  Each  case 
must  therefore  be  considered  on  its  own  terms ;  but  the  decided  cases 
furnish  some  guide. 

§  70.  "Where  the  amount  of  the  penalty  is  small,  as  compared  with 
the  value  of  the  subject  of  the  agreement,  it  has  been  considered  a 
reason  for  treating  the  sum  reserved  as  a  mere  penalty,  and  not  in  the 
nature  of  an  alternative  agreement ;(/)  and  the  court  has  no  difficulty 
in  decreeing  specific  performance  to  an  amount  greater  than  that  of  the 
penalty. 

§  71.  Thus,  where  a  man,  being  very  uncertain  what  estate  he  should 
derive  from  his  father,  entered  into  a  bond  in  £5000,  on  the  marriage 
of  his  daughter,  to  settle  one-third  of  such  property,  and  the  agreement 
so  to  settle  was  recited  in  the  condition,  it  was  specifically  performed  in 
full  and  not  up  to  £5000  only  ;(^)  and  where  two  persons  ^entered  „  ^-,„ 
into  articles  for  the  sale  of  an  estate,  with  a  proviso  that,  if  L  "J 
either  side  should  break  the  agreement,  he  should  pay  £100  to  the  other, 
and  the  defendant,  by  his  answer,  insisted  that  it  was  the  intention 
of  both  parties  that,  upon  either  paying  £100,  the  agi-eement  should  be 
absolutely  void,  Lord  Hardwicke  nevertheless  decreed  specific  perform- 
ance of  the  agreement  to  sell. (A)  In  another  case,(A  the  condition  re- 
cited an  agreement  for  a  settlement  comprising  a  sum  of  money  and  also 
real  estate  :  the  penalty  was  double  this  sum  of  money,  but  had  no  rela- 
tion to  the  real  estate ;  the  court  granted  specific  performance  of  the 
agreement  embodied  in  the  condition.     And  where  a  father,  in  conside- 

(«)  Howard  v.  Hopkins,  2  Atky.  371  ;  French  v.  Macalc,  2  Dr.  &  W.  269  ;  Ro- 
per V.  Bartholomew,  12  Pri.  797. 

(6)  Ranger  v.  Great  Western  Railway  Company,  5  Ho.  Lords,  73. 

(c)  Jones  V.  Green,  3  Y.  &  J.  298.  (d)  Cole  v.  Sims,  5  De  G.  M.  &  G.  1. 

(e)  Finch  v.  E.  of  Salisb.,  Finch,  212. 

(/)  Chilliner  v.  Chilliner,  2  Ves.  Sen.  528. 

(Sf)  Hobson  V.  Trevor,  2  P.  Wnis.  191.         (h)  Howard  v.  Hopkins,  2  Atky.  371. 

(/)  Prebble  v.  Koghurst.  1  Sw.  309. 


48   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

ration  of  his  daughters  giving  up  a  part  of  their  interest  in  the  property, 
agreed  to  make  up  their  incomes  arising  out  of  it  to  £200  a  year,  and 
entered  into  a  bond  for  the  payment  of  such  sum  as  might  be  needful 
for  that  purpose,  and  the  bond  recited  the  agreement,  the  court  took 
this  as  evidence  of  the  agreement,  and  accordingly  granted  relief  on  the 
foot  of  it  beyond  the  bond  ;(/i-)  and  in  a  case  which  went  to  the  house  of 
lords,  an  agreement  to  leave  property,  contained  in  the  condition  of  a 
bond,  was  held  not  to  be  satisfied  by  the  penalty,  but  was  specifically 
performed.  0 

§  72.  The  fact  that  the  benefit  of  the  agreement  would  result  to  one 
person  or  flow  in  one  channel,  and  the  benefit  of  the  sum,  if  paid,  in 
another,  is  a  strong  circumstance  against  considering  the  agreement  as 
alternative  in  its  nature  :  thus,  where,  on  a  marriage,  the  husband's 
father  gave  a  bond  for  the  payment  of  £600  to  the  wife's  father,  his 
executors  or  administrators,  in  the  penalty  of  £1200  if  he  did  not  con- 
vey  certain  lands  for  the  benefit  of  the  husband  *and  wife  and 
L  "  J  their  issue.  Lord  Hardwicke  held  that  the  obligor  was  not  at 
liberty  to  pay  the  £600,  or  settle  the  lands,  at  his  election,  but  compelled 
the  specific  performance  of  the  agreement  to  settle, — grounding  himself 
in  part  on  this,  that  the  £600  would  not  have  gone  to  the  benefit  of  the 
husband  and  wife  and  their  issue,  but  of  the  wife's  father  and  his  repre- 
sentatives.(m) 

§  73.  Where  the  sum  reserved  is  single,  and  the  act  stipulated  against 
is  in  its  nature  continuing  or  recurring,  as,  for  instance,  particular  modes 
of  cultivating  a  farm,  the  sum  will  be  considered  as  a  penalty  :(?;)  and  so 
where  the  plaintifl"  and  defendant  were  partners,  but  it  was  agreed  that 
the  plaintiff  should  alone  conduct  the  business,  and  the  defendant  should 
have  the  use  of  a  particular  room  in  the  house  whenever  he  desired,  and, 
to  secure  this,  the  plaintiff  gave  the  defendant  a  bond  in  £500,  this  was 
held  to  be  a  security,  and  accordingly  the  court  restrained  a  suit  for  the 
penalty,  and  granted  an  issue  quantum  damnificatus  to  try  the  real 
damage. "(o) 

§  74.  Where,  in  a  lease,  the  sum  to  be  paid  for  the  infraction  of  any 
stipulation  is  an  increased  rent  during  the  whole  term,  the  court  looks 
on  it  as  an  alternative  rent  in  the  nature  of  liquidated  damages.  This 
was  decided  by  the  house  of  lords  in  the  case  of  Rolfe  v.  Peterson, (j^) 
where  it  was  held — reversing  a  decision  of  Lord  Camden — that,  in  an 
action  brought  for  recovering  a  sum  thus  reserved,  a  court  of  equity 
ouo-ht  not  to  interpose,  or  give  any  relief.  So  where  a  lessee  covenanted 
not  to  plough  any  land,  and  if  he  did,  then  to  pay  twenty  shillings  per 
acre  per  annum,  the  court  refused  to  enjoin  him  from  ploughing  the 
land.(^)     Again,  where  a  lease  was  entered  into  subject  to  a  rent  pay- 

Ui)  Jcudwine  v.  Agate,  3  Sim.  141. 

\l)  Logan  V.  Wienholt,  1  CI.  &  Fin.  611  ;  S.  C.  7  Bli.  N.  S.  1.  See  also  Butler 
V.  Powis,  2  Coll.  C.  C.  15G. 

(ffi)  Chilliner  v.  Chilliner,  2  Ves.  Sen.  528  ;  Roper  v.  Bartholomew,  12  Pri.  V97. 
(n)  French  v.  Macale,  2  Dr.  &  W.  269. 

(o)  Sloman  v.  Walter,  1  Bro.  C.  C.  418.  (/.)  2  Bro.  P.  C.  436. 

[q]  Woodward  v.  Gyles,  2  Vern.  119. 


CONTRACTS    AVITH    A    PENALTY.  49 

able,  *and  to  certain  yearly  payments  to  be  made  by  the  lessee  r-  j,,oa  -i 
in  case  he  should  not  manage  the  farm  as  specified  in  his  lease,  •-  -^ 
and  also  in  case,  in  the  last  three  years  of  his  term,  he  should  sow  more  than 
seventy  acres  of  clover  in  one  year,  to  an  additional  rent  of  £10  per 
annum  for  every  acre  above  the  seventy  acres,  the  additional  rents  were 
held  to  be  in  the  nature  of  liquidated  damages.^?-)  And  where  there 
was  a  covenant  against  erecting  a  weir,  under  the  penalty  of  double  the 
yearly  rent,  thereinafter  reserved,  to  be  recovered  by  distress,  this,  not- 
withstanding that  the  sum  was  spoken  of  as  a  penalty,  was  held  to  be 
liquidated  damages ;  the  power  of  distress  is  a  strong  circumstance  iu 
that  direction. (s) 

§  75.  But  where,  in  addition  to  the  increased  rent,  there  is  a  stipula- 
tion that  the  act  provided  against  shall  be  a  forfeiture  of  the  covenantor's 
interest,  the  sum  is  held  to  be  a  penalty,  and  not  liquidated  damages. (?j 

§  7G.  Where  the  agreement  would  be  unreasonable  unless  it  gives  an 
option  to  the  person  stipulating  to  pay  the  sum,  this  will  be  a  strong  cir- 
cumstance for  treating  that  as  liquidated  damages,  and  the  agreement  as 
alternative.  So  where  a  lady,  administratrix  of  her  husband,  covenanted, 
under  a  penalty  of  £70,  to  renew  a  sub-lease  as  often  as  she  obtained  a 
renewal  of  the  head-lease,  and  it  appeared  that  the  fines  on  the  head- 
lease  were  raised  on  renewal,  according  to  the  then  value  of  the  pro- 
perty, so  as  to  render  her  covenant  unreasonable  except  upon  the  con- 
struction of  its  giving  her  an  option,  the  house  of  lords  treated  the  sum 
as  liquidated  damages. («) 

§  77.  If  there  are  sums  made  payable  in  case  certain  *acts  are  i-  :)<o-i  -i 
not  done,  and  the  performance  is  over  and  above  this  secured  by  l  J 
a  penalty,  this  is  a  reason  for  holding  the  first  sums  to  be  liquidated 
damages  :(*•)  but  lord  Hardwicke  appears  not  to  have  thought  this  a  con- 
clusive argument,  and  in  one  case,  notwithstanding  this  circumstance, 
granted  specific  performance  of  the  agreement. (?«) 

§  78.  From  the  nature  of  the  case,  specific  performance  of  stipulations 
protected  by  a  penal  sum  will  often  be  by  way  of  injunction  ;  and  the 
court  will  not,  on  an  interlocutory  application  to  dissolve  an  injunction, 
decide  the  question  whether  the  sum  is  a  penalty  or  liquidated  damages, 
but  will  only  consider  whether  there  is  a.  prima  facie  case  for  an  injunc- 
tion, and  whether  more  mischief  will  be  done  by  granting  than  by  with- 
holding it.(x) 

(r)  Jones  v.  Green,  3  Y.  &  J.  298. 

(A-j  Gerrard  v.  O'Reilly,  3  Dr.  &  "VY.  414;  French  v.  Macalc,  2  Dr.  &  W.  269. 
The  old  cases  of  City  of" London  v.  Pugh,  4  Bro.  P.  C.  395,  and  Webb  v.  Clarke, 
1  Fonbl.  Eq.  154,  appear  at  variance  with  the  rule  as  now  established. 

(t)  French  v.  Macale,  2  Dr.  &  W.  269.       (u)  Magram  v.  Archbold,  1  Dow.  107. 

(y)  Ranger  v.  Great  AYestern  Railway  Company,  5  Ho.  Lords,  73. 

(w)  Chilliner  v.  Chilliner,  2  Ves.  Sen.  528. 

{x)  Cole  v.  Sims,  5  De  G.  M.  &  G.  1. 


50   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

PART  II. 
OF  PARTIES  TO  THE  SUIT. 


[*32]  ^CHAPTER   I. 

OF    THE   GENERAL   RULE. 

§  79.  The  general  rule  is  that  the  parties  to  the  contract  ought  alone 
to  be  parties  to  the  suit.  The  contract  is  what  constitutes  the  rights 
and  regulates  the  liabilities  of  the  parties  :  in  a  stranger  there  is  no  lia- 
bility ;  and  against  him,  therefore,  there  is  no  more  right  to  enforce 
specific  performance  in  equity  than  to  recover  damages  at  law. (a)  It 
makes  no  diiFerence,  that  the  stranger  to  the  contract  may  be  a  necessary 
party  to  the  conveyance,  as  a  judgment  creditor,  or  mortgagee,  or  a  per- 
son interested  in  the  equity  of  redemption. (6)  And  so  where  a  steward 
was  made  a  party  as  being  receiver  of  the  rents,  and  having  the  title- 
deeds  in  his  possession,  the  bill  was  dismissed  as  against  him.(c)  And  in  a 
suit  to  enforce  a  contract  made  by  a  mortgagee,  under,  a  power  of  sale, 
the  mortgagor  is  not  a  necessary  party. ((^) 

r  *qq  -i  *§  ^0.  The  principle  now  before  us  was  strongly  illustrated 
L  -^  by  the  case  of  Robertson  v.  The  Great  Western  Railway  Com- 
pany.(e)  The  plaintiff  had  agreed  to  sell  to  the  defendants  a  piece  of 
land,  and  to  buy  up  the  right  then  vested  in  his  tenant;  the  defendants 
having  entered  before  payment  of  the  purchase-money,  they  were  served 
with  notices  not  to  trespass  on  the  land,  both  by  the  plaintiff'  and  his 
tenant.  The  plaintiff  then  brought  his  bill  for  a  specific  performance 
and  to  restrain  the  trespass,  to  which  the  defendants  demurred,  on  the 
ground  that  the  tenant  was  not  a  party ;  the  vice-chancellor  of  England 
allowed  the  demurrer,  considering  that,  two  persons  being  affected  by  the 
injury,  the  court  must  have  them  both  before  it;  but  the  demurrer  was 
overruled  by  the  lord  chancellor,  on  the  ground  that  the  object  of  the 
suit  was  a  specific  performance,  and  that  the  company  might  be  restrained 
from  entering  without  payment  of  the  purchase-money,  whether  that 
entry  did  or  did  not  affect  the  tenant. 

§  81.  By  the  general  principles  of  the  court,  parties  having  adverse 
or  inconsistent  rights  in  the  subject-matter  of  the  suit  cannot  be  joined 

{a)  Mole  V.  Smith,  Jac.  490;  Tasker  v.  Small,  3  My.  &  Cr.  63,  69;  "Wood  v. 
White,  4  My.  &  Cr.  460,  483  ;  Humphreys  v.  Hollis,  Jac.  73  ;  Patterson  v.  Long, 
5  Beav.  186  ;  Peacock  v.  Penson,  11  Beav.  355. 

(6)  Tasker  v.  Small,  ubi  sup.,  overruling  S.  C.  6  Sim.  625,  636  ;  cf.  Sober  v. 
Kemp,  6  Ha.  155,  (a  mixed  case  of  specific  performance  and  foreclosure.)  See 
also  Petre  v.  Buncombe,  7  Ha.  24,  (a  purchaser's  bill,)  and  Lord  Leigh  v.  Lord 
Ashburton,  11  Beav.  470,  (a  vendor's  bill,)  from  which  it  appears  that  judgment 
creditors,  though  not  necessary,  may  be  proper  parties. 

(c)  Macnamara  v.  Williams,  6  Ves.  143. 

(d)  Corder  v.  Morgan,  18  Ves.  344;  Ford  v.  Hcelv,  (Stuart  V.  C.)  3  Jur.  N.  S. 
1116. 

(e)  1  Rail.  C.  459;  S.  C.  10  Sim.  314. 


TUE    GENERAL    RULE.  51 

as  plaintiffs ;(/)  nor  can  a  person  who  has  no  interest  be  joined  as 
plaintiff  with  one  who  has.(,(/)  The  importance  of  the  doctrine  of  mis- 
joinder is  now,  however,  diminished  by  the  49th  section  of  the  act  to 
amend  the  practice  of  the  Court  of  Chancery. (A)  In  some  cases,  persons 
claiming  adversely  may  be  made  defendants. (/') 

§  82.  A  sub-purchaser,  or  person  claiming  an  interest  by  purchase  from 
the  purchaser,  is  not  generally  a  proper  party  to  a  bill.  Therefore,  in 
a  case(/i;)  before  the  *vice-chancellor  of  England,  where  a  pur-  ^  .^o  <  -i 
chaser  undersold,  and  the  bill  was  brought  by  the  vendor  against  L  -• 
both  purchaser  and  sub-purchaser,  it  was  dismissed  as  against  the  latter, 
though  specific  performance  was  decreed  against  the  original  contractor ; 
and  this  was  affirmed  by  Lord  Chancellor  Lyndhurst,  after  two  arguments 
before  him  :  and  the  same  doctrine  has  recently  been  stated  by  Lord 
Justice  Turner.  (A 

§  83.  A  case(??i)  before  Lord  Justice  Knight  Bruce,  when  a  vice-chan- 
cellor, requires  to  be  stated,  as  it  appears  to  present  a  distinction  that  is 
to  be  observed.  There  A.  had  contracted  to  purchase  an  estate  from  B., 
having  previously  agreed  with  C.  to  sell  the  estate  to  him,  and  a  contract 
to  that  effect  was  afterwards  entered  into  between  A.  and  C.  A.  and  C. 
.subsequently  brought  a  bill  for  performance  against  B.,  and  it  was  held 
that  they  were  both  proper  parties.  Here  it  will  be  observed  that  there 
was  an  agreement,  under  which  C.  claimed  an  interest,  prior  to  the  con- 
tract with  B.,  and  both  might  perhaps  be,  in  some  sense,  treated  as  par- 
ties to  the  contract.  The  vice-chancellor  considered  that  Tasker  v. 
Small,(?i)  had  little  or  no  application  to  the  case  before  him,(o)  and 
appears  to  have  rested  his  decision  on  the  ground  that  both  the  plaintiffs 
had,  at  the  institution  of  the  suit,  an  interest  in  the  subject-matter  of 
it.(p)  And  it  has  been  held  that  if  A.  contract  to  purchase  from  B., 
and  A.  then  contract  with  C.  that  B.  shall  convey  to  C,  and  B.  have 
notice  thereof,  A.  cannot  enforce  the  contract  against  B.  without  join- 
ing C.  as  a  party. (5) 

§  84.  The  cases  in  which  persons  claiming  derivative  interest  from 
the  vendor  are  made  parties,  will  be  subsequently  considered. (/•) 

§  85.  To  the  general  rule  as  above  laid  down,  it  will  be  *found  _  ^^^ .  -. 
that  many  exceptions  arise :  some  of  these  will  be  noticed  in  the  L<  J 
subsequent  chapters.  But  there  are  other  exceptions,  or  apparent  ex- 
ceptions to  the  strict  rule,  which  may  well  be  stated  here. 

§  86.  One  case  where  the  parties  to  the  original  contract  are  not  those 
to  the  suit,  is  where  there  has  been  a  novation  or  new  contract  substituted 
for  the  original  one  by  the  intervention  of  a  new  person,  in  which  case 

(/)  Falham  v.  M'Carthy,  1  Ho.  Lords,  T03  ;  Padwick  v.  Piatt,  11  Beav.  503. 
(ff)  S.  C.  and  per  Lord  Lyndhurst,  in  King  of  Spain  v.  Machado,  4  Russ.  240. 
See  also  Pearce  v.  Watkins,  9  Ha.  315. 

(A)   15  &  16  Vict.  c.  86.  (?)  See  post,  §  96. 

(k)  Cutts  V.  Tliody,  1  Coll.  C.  C.  223;  Anon.  v.  Walford,  4  Russ.  372, 

(I)  Chadwick  v.  Maden,  9  Ha.  188. 

(m)  Nelthorpe  v.  Holgate,  1  Coll.  C.  C.  203. 

(n)  3  My.  &  Cr.  63,  ante,  §  79.  (0)  1  Coll.  C.  C.  211. 

(p)  p.  218.  (q)  Anon.  v.  Walford,  4  Russ.  372. 

{r)  See  g  135  et  seq. 


52        FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  party  in  whose  place  the  new  person  is  introduced  is  no  longer  a  party 
to  the  contract,  and  therefore  ceases  to  be  a  proper  party  to  the  suit,  which 
must  be  carried  on  between  the  parties  to  the  new  contract.  Thus,  where 
A.  agrees  to  sell  to  B.,  and  before  completion,  B.  contracts  to  sell  to  C, 
and  A.  deals  with  C.  as  the  purchaser,  this  may  amount  to  a  new  con- 
tract; and  even  where  it  does  not  strictly  do  so,  B.  may  be  an  unneces- 
sary party  to  the  suit.(s)  And  so,  again,  where  a  railway  company  had 
entered  into  an  arrangement  with  a  landowner,  and  during  the  proceed- 
ings before  parliament  an  agreement  was  entered  into  between  that  com- 
pany and  a  rival  company  for  referring  the  two  bills  to  certain  persons, 
and  that  the  successful  company  should  take  to  all  the  engagements  of  the 
other,  and,  in  accordance  with  the  award,  the  company  which  had  con- 
tracted with  the  landowner  withdrew  his  bill,  it  was  held  that  the  land- 
owner could  enforce  the  agreement  against  the  other  company,  who  had 
thus  adopted  it.(^) 

§  87.  The  32nd  Hen.  VIII.,  c.  34,  which  gives  to  reversioners  the 
benefit  of  covenants  entered  into  with  their  predecessors  in  title,  au- 
thoi'izes,  it  seems,  a  suit  in  equity  for  the  specific  performance  of  the 
covenant.  As  at  law,(?t)  so  in  equity,  the  statute  gives  the  benefit  to  the 
r  *^R  1  successive  *reversioners  only  as  they  come  into  possession  of  the 
L  J  estate ;  but  when  thus  entitled,  they  have  a  right  to  the  per- 
formance of  the  covenant  modo  et  forma,  irrespectively  of  the  damage 
which  may  accrue  from  its  breach. («>) 

§  88.  The  reversioner  entitled  in  remainder  and  not  in  possession  may. 
however,  have  a  right  to  enforce  the  covenant ;  but  this  right  is  not  simply 
to  the  performance  of  it  modo  et  forma ,  but  depends  on  his  showing  that 
he  would,  as  reversioner,  sustain  some  material  damage  by  reason  of  its 
breach. («•)  This  follows  the  analogy  of  law,  where  the  reversioner,  to 
enable  him  to  sue  as  such,  must  show  some  special  damage  ;(a-)  the  doc- 
trine in  both  courts,  seeming  to  depend  on  the  nature  of  the  plaintiff's 
interest  in  i\ie  estate  diminishing  his  interest  in  the  breach  of  the  covenant, 
and  the  principle  expressed  by  the  maxim  de  minimis  non  curat  lex. 

§  89.  In  cases  of  contracts  under  powers,  the  question  sometimes  arises, 
whether  a  contract  entered  into  by  the  donee  of  the  power  can  be  enforced 
by  or  against  the  remainderman,  the  cases  in  which  he  can  sue  or  be 
sued  being,  of  course,  co-extensive.  The  rule  by  which  this  question  is 
decided  is  that  the  contract  is  binding  in  those  cases,  and  those  cases 
only,  in  which  it  might  have  been  enforced  against  the  donee  of  the 
power  himself,  independently  of  any  conduct  on  his  part.(y)  The 
grounds  on  which  part-performance  by  a  tenant  for  life  will  not  bind  the 

(s)  Holden  v.  Ilayn,  1  Mer.  4V  ;  Hall  v.  Laver,  3  Y.  &  C.  Ex.  191 ;  Shaw  v.  Fisher, 
5  De  G.  M.  &  G.  596. 

[t^  Stanley  v.  Chester  and  Birkenhead  Railway  Campany,  9  Sim.  264;  3  My.  & 
Cr.  773.     See  also  post,  §  684  et  seq. 

(u)  Isherwood  v.  Oldknow,  3  M.  &  S.  382. 

{v)  .Johnst.  V.  Hall,  2  K.  &  J.  414.  {w)  S.  C. 

(x)  Jackson  v.  Pesked.  1  M.  &  S.  234 ;  Baxter  v.  Taylor,  4  B.  &  Ad.  72 ;  Mum- 
ford  V.  Oxford  Railway  Company,  25  L.  J.  Ex.  265;  Simpson  v.  Savage,  1  C.  B. 
N.  S.  349. 

(y)  Morgan  v.  Milman.  10  Ha.  279 ;  S.  C.  3  De  G.  M.  &  G.  24 ;  Lowe  v.  Swift, 
2  Ball  &  B.  529. 


THE    GENERAL    RULE,  53 

remainderman,  will  be  considered  wlien  we  come  to  treat  of  the  princi- 
ples of  that  subject.(2) 

§  90.  The  court  has  no  jurisdiction  to  enforce  the  contracts  of  a  tenant 
in  tail  against  those  in  remainder. («) 

*  §  91.  In  the  case  of  a  contract  for  the  sale  of  a  bankrupt's  r^oy  -i 
property  by  the  creditors'  assignees,  the  official  assignee,  being  L  -^ 
the  proper  hand  to  receive  the  money,  appears  to  be  a  necessary  and 
proper  party  to  a  suit  for  the  specific  performance  of  the  contract. (^) 

§  92.  Where  the  circumstances  of  the  case  may  be  fitting,  some  may, 
of  course,  sue  for  specific  performance  on  behalf  of  all :  thus  the  directors 
of  a  joint-stock  company  were  allowed  to  sue  on  an  agreement  to  make 
a  lease  to  them,  without  joining  all  the  shareholders. (c)  But  in  the  con- 
verse case,  there  is  great  difficulty,  in  applying  to  specific  performance, 
the  principle  that  some  may  be  sued  on  behalf  of  all :  from  the  nature  of 
such  suits,  however,  this  application  of  the  principle  is  not  often  required 
for  the  ends  of  justice.  In  one  case,((Z)  a  joint-stock  company  established 
by  an  act  of  parliament,  which  vested  in  them  all  property  then  belong- 
ing to  them  and  authorized  them  to  bring  actions  in  the  name  of  their 
treasurer,  purchased  an  estate,  with  notice  of  a  prior  agreement  by  the 
owner  to  grant  a  lease  of  part :  on  a  bill  by  this  proposed  lessee  against 
the  directors  and  treasurer,  but  not  the  other  proprietors,  asking  for  a 
specific  performance  of  the  agreement.  Sir  William  Grant  said,  that 
though  he  could  bind  the  interests  of  parties  not  before  the  court,  he 
could  not  compel  them  to  do  an  act,  and  that  the  execution  of  the  lease 
by  a  few  on  behalf  of  all  would  hardly  be  sufficient,  supposing  it  proper. 
He,  however,  gave  the  plaintifis  all  the  relief  he  could,  by  enjoining  the 
treasurer  from  disturbing  their  possession,  though  he  could  not  compel 
specific  performance  of  the  agreement. 

§  93.  There  are  a  few  cases  in  which  the  strict  rule  that  none  but  the 
parties  to  a  contract  are  proper  parties  to  a  suit  for  its  specific  perform- 
ance, appears  to  have  been  relaxed,  to  avoid  multiplicity  of  suits. 

*  §  94.  To  this  principle  we  may  probably  refer  the  case  of  p  ^oo  -i 
Lowther  v.  Viscountess  of  Andover,(e)  where  a  father  entered  •-  -^ 
into  a  covenant  with  the  trustees  of  his  daughter's  marriage  settlement 
to  endeavour  to  purchase  certain  remainders  in  estates  of  which  he  was 
tenant  for  life,  and,  when  purchased,  to  convey  them  to  the  uses  of  the 
settlement.  The  covenantor  died,  having  previously  entered  into  an 
agreement  for  the  purchase  of  the  remainders :  on  a  bill  filed  by  the 
tiTistees  of  the  settlement  against  the  vendors,  and  it  would  seem  also 
the  personal  representative  of  the  deceased,  specific  performance  was 
granted.  In  another  case,(/)  where  the  Duke  of  Chandos  had  granted 
to  A.  a  lease  of  a  lodge,  and  also  the  deputation  of  a  keepership  in 
Enfield  Chase,  and  A.  assigned  but  for  part  of  the  terms  only  to  B.,  B. 

(z)  See  post,  §  389.  (a)  3  &  4  Wm.  IV.,  c.  74,  s.  45. 

(b)   12  &  13  Vict.,  c.  106,  s.  39.         (c)  Taylor  v.  Salmon,  4  Mr.  &  Cr.  134. 

(d)  Meux  V.  Maltby,  2  Sw.  277. 

(e)  1  I?ro.  C.  C.  39G.  As  to  creditors  of  a  deceased  vendor  suing,  see  Johnson 
V.  Legard,  T.  &  R.  281. 

(/)  Jalabert  v.  Duke  of  Chandos,  1  Ed.  372. 


54       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

was  allowed  to  maintain  a  bill  against  the  duke  and  A.  for  the  rectifica- 
tion of  a  mistake  in  the  original  grant  by  the  duke,  and  for  a  new  and 
suflScient  grant  by  him. 

§  95.  The  same  principle  is  illustrated  by  another  case,(^)  in  which  a 
bill  was  filed  by  a  purchaser  against  trustees  for  sale,  to  enforce  the 
specific  performance  of  an  agreement  for  the  sale  of  lot  A  :  it  was  resisted 
on  the  ground  that  by  an  arrangement,  to  which  the  plaintiff  was  a  party, 
part  of  that  lot  as  originally  described  was  taken  from  it  and  given  to 
the  adjoining  lot,  B.  The  bill  was  amended  to  put  in  issue  this  aver- 
ment, which  came  out  in  the  answer,  but  without  adding  as  defendant  the 
purchaser  of  lot  B  ;  and  the  court  held  that  he  ought  to  have  been  made 
a  defendant,  for  otherwise  the  vendors  would  be  exposed  to  another  suit 
from  the  purchaser  of  lot  B. 

§  96.  And  where  there  are  claims  made  by  persons,  strangers  to  the 
contract,  adversely  to  both  the  parties  to  it,  they  may,  under  some  cir- 
r  *^Q  1  cumstances,  be  made  defendants  *to  a  suit  for  the  performance 
L  J  of  it.  Thus,  where  an  assignee  under  an  insolvency  sold  a  rever- 
sionary interest  in  stock  of  the  insolvent,  and  the  purchaser  was  served 
with  notice  not  to  pay  the  purchase-money  to  the  assignee  by  a  person 
claiming  under  a  previous  assignment  by  the  insolvent  subsequent  to  his 
insolvency,  a  bill  was  brought  against  the  assignee  and  the  adverse 
claimant,  and  prayed  an  inquiry  into  the  rights  of  the  latter :  he  was,  in 
the  event  decreed,  to  pay  costs. (7i) 

§  97.  x\nd  so,  in  the  case  of  purchases  from  a  voluntary  settlor,  where 
the  contract  is  enforced  by  a  purchaser,  it  seems  proper  to  make  defend- 
ants, not  only  the  vendor,  but  the  trustees  of  the  settlement  and  the  per- 
sons beneficially  interested  under  it.(?') 

§  98.  Wherever  a  contract  is  entered  into  by  a  trustee  on  behalf  of 
another  person,  and  the  person  thus  beneficially  interested  seeks  to  en- 
force the  contract,  the  trustee  is  a  necessary  party  to  the  suit;  for  other- 
wise another  suit  might  become  necessary  against  him.(7t-) 

§  99.  Cestuis  que  trust  are  not  generally  necessary  parties  to  suits  by 
or  against  trustees :(?)  but  it  would  seem  that  they  should  still  be  made 
parties  in  any  case,  where  the  trustees  by  themselves  are  unable  to  enter 
into  a  valid  contract,  or  where  the  parties  beneficially  interested  are  enti- 
tled to  be  heard  to  dispute  the  right  of  the  trustees  to  exercise  the  power 
under  which  the  contract  has  been  made.(m) 

§  100.  It  may  be  added  that  each  contract  of  a  vendor  with  a  pur- 
chaser being  separate,  is  properly  the  subject  of  a  several  suit ;  and  where 
several  purchasers  have  been  joined  in  one  suit,  a  demurrer  for  multi- 
fariousness has  been  allowed. (h) 

r*im  *§  ^^^'  ^^^  ^°  ^  ^'"^^^  ^^  which  there  had  been  several  sales 
L         J  of  a  like  kind,  and  several  purchasers  joined  as  plaintifi"s,  and 

iff)  Mason  v.  Franklin,  1  Y.  &  C.  C.  C.  239. 

(A)  Collett  V.  Hever,  1  Coll.  C.  C.  227,  before  Lord  Cottenham. 

(i)  Willets  V.  Busby,  5  Beav.  193. 

(k)  Cope  V.  Parry,  2  J.  &  W.  538  ;  Cooke  v.  Cooke,  2  Vern.  36. 

{1}   15  &  16  Vict.  c.  86,  s.  42,  rale  9. 

(m)  Evans  v.  Jackson,  8  Sim.  217  ;  Saunders  v.  Richards,  1  Coll.  C.  C.  568. 

(n)  Rayner  v.  Julian,  2  Dick.  677  ;  Brookes  v.  Lord  Whitworth,  1  Mad.  86. 


A    STRANGER    TO    THE    CONTRACT.  55 

the  persons  interested  in  the  estate  made  no  objection  for  multifarious- 
ness, the  court  decreed  specific  performance  of  the  different  contracts  in 
one  suit.(ci) 


♦CHAPTER   IL  [*41] 

OF  A  STRANGER  TO  THE  CONTRACT. 

§  102.  The  principle  obtains  both  at  law  and  in  equity,  that  a  stranger 
to  the  contract  cannot  sue  on  it :  and  this  is  not  varied  by  the  mere  fact 
that  the  stranger  takes  a  benefit  under  it,  except  in  certain  cases  which 
will  be  afterwards  mentioned. («) 

§  103.  Thus  in  a  recent  case,(i)  where  protracted  litigation  had  been 
undertaken  by  A.  for  the  recovery  of  an  estate,  and  in  the  course  of 
these  proceedings  A.  became  greatly  indebted  to  his  solicitor,  and,  by  an 
agreement  between  A.  and  his  brother  B.,  A.  agreed  to  relinquish  his 
interest  in  the  estate  to  B.,  in  consideration  of  B.'s  undertaking  to  pay 
the  costs  already  incurred,  with  interest,  it  was  held  that  the  solicitor 
being  no  party  to  the  agreement,  and  having  given  no  consideration  for 
it,  could  derive  no  benefit  under  it  capable  of  being  enforced  by  him. 

§  104.  The  case  of  Hook  v.  Kinnear  and  Philips, (c^  which  may  appear 
at  first  sight  at  variance  with  the  principle  *above-stated,  seems  j-  ^  , ,-,  , 
to  depend  on  a  different  doctrine,  namely,  that  of  agency.  There  L  "^  J 
the  two  defendants  were  tenants  in  common  of  certain  lands,  and  the 
defendant  Kinnear  having  been  tenant  of  Philips's  moiety,  and  in  arrear 
to  him  for  the  rent,  agreed  with  Philips  to  execute  to  the  plaintiffs  such 
lease  of  the  entire  premises  as  Philips  and  the  plaintiff  should  agree 
upon,  and  that  all  the  rent  should  be  paid  to  Philips  till  the  arrears  due 
to  him  were  satisfied  ;  the  plaintiff  was  no  party  to  the  agreement :  Philips 
entered  into  an  agreement  with  the  plaintiff  for  a  lease  of  the  premises 
at  £30  per  annum,  and  executed  a  lease  of  his  moiety  at  £15  per  annum  : 
the  defendant  declined  to  do  the  same  in  respect  of  his  moiety  :  and  it 
was  objected  that  the  plaintiff  as  a  stranger  could  not  sue  :  but  Lord 
Hardwicke  overruled  the  objection,  on  the  ground  that  Philips  might  be 
taken  as  the  agent  of  the  plaintiff  in  the  contract,  and  compared  it  to 
the  case  of  stewards  entering  into  agreements,  and  their  masters  enforc- 
ing them. 

(o)  Hargreaves  v.  Wright,  10  Ha.  Appx.  56. 

(a)  Crow  V.  Rogers,  1  Str.  592;  Ex  parte  Peele,  6  Ves.  602  ;  Ex  parte  Williams, 
Buck,  13;  Berkeley  v.  Hardy,  5  B.  &  C.  355  ;  Lord  Southampton  v.  Brown,  6  B. 
&  C.  718.  Per  Lord  Langdale  in  Colyear  v.  Countess  of  Mulgrave,  2  Ke.  98  ;  Hill 
V.  Gomme,  5  Jly.  &  Cr.  250,  256.  The  dicta  of  Eyre,  C.  J.  in  Fellmakers'  Com- 
pany V.  Davis,  1  B.  &  P.  102,  and  of  Mr.  J.  BuUer  in  his  N.  P.  p.  134,  do  not  ap- 
pear to  be  law.  The  Scotch  law  differs  from  ours  in  this  particular,  recognizing 
ihe  Jus  quasiium  tertio.     Stair,  Inst.  B.  i.  t.  10,  s.  5. 

(6)  Moss  V.  Bainbrigge,  18  Beav.  478,  482  ;  S.  C.  on  appeal,  6  De  G.  -M.  &  G. 
292.  (c)  3  Sw.  417,  n. 


5G   FRY  ON  SPECIFIC  PERrORMANCE  OF  CONTRACTS, 

§  105.  The  exceptions  to  wlucli  the  rule  before  us  is  subject,  seem  to 
be  :  1st,  in  the  case  of  persons  claiming  as  beneficially  entitled  under 
marriage-settlements  to  which  they  were  not  parties ;  2ndly,  in  certain 
cases  of  close  relationship  between  a  contracting  party  and  the  stranger  j 
and  ordly,  where  a  partial  execution  of  the  contract  has  changed  the 
status  of  the  stranger,  and  given  him  a  right  to  its  complete  perform- 
ance. 

§  106.  (1)  The  exception  to  this  general  principle  in  respect  of  mar- 
riage-articles arises  from  the  nature  of  the  contract,  in  which,  not  the 
contracting  parties  only,  but  those  for  whose  benefit  they  contract,  and 
especially  the  issue  of  the  marriage,  are  regarded  as  purchasers,  and  in 
that  capacity  entitled  to  the  specific  performance  of  the  articles. 

§  107.  With  regard  to  the  issue,  this  is  well  settled.     "  In  marriage- 

,^  contracts,"  said  Lord  Cottenham,(t7)  "the  *children  of  the  mar- 
L         -I  riage  are  not  only  objects  of,  but  quasi  parties  to  it." 

§  108.  With  regard  to  collaterals  also,  the  same  principle  is  now  estab- 
lished, at  least  as  against  the  parties  to  the  contract  other  than  those 
through  whom  the  collaterals  claim.  The  old  doctrine  excluded  colla- 
terals :  but  the  court  now  considers  it  impossible  to  ascertain  what  colla- 
teral branches  may  have  been  in  the  view  of  the  contracting  parties  at 
the  time  of  the  contract,  or  which  of  the  several  stipulations  in  a  contract 
the  parties  laid  the  greatest  stress  upon.  Another  principle  upon  which 
the  court  has  in  some  cases  proceeded,  is  that  the  trustees,  being  cove- 
nantees, might  sue  at  law  for  the  non-performance  of  the  covenant  to 
settle,  and  that,  as  the  measure  of  the  damages  to  which  they  would  be 
entitled  would  be  the  interests  of  all  their  cestuis  que  trust,  the  colla- 
terals would  thus  gain  the  benefit  of  the  covenant ;  and  that  the  relief 
in  equity  must  of  course  be,  at  least,  commensurate  with  the  damages  at 
law.(e)  The  leading  case  upon  this  subject  is  Goring  v.  Nash,(/]  where 
Lord  Hardwicke  specifically  executed  articles  made  on  the  marriage  of 
Sir  Robert  Fagg's  son,  by  which  part  of  the  estate  was,  after  several 
previous  limitations,  limited  in  tail  to  the  plaintifi",  who  was  a  younger 
daughter  of  Sir  Robert  Fagg,  with  remainder  to  her  sisters  in  tail. 
Lord  Hardwicke  held  this  to  be  a  provision  made  by  the  father  for 
his  younger  children,  that  as  such  they  were  purchasers  and  clearly 
entitled  to  specific  performance,  and  that  this  right  was  not  affected  by 
the  fact  that  the  limitations  to  the  plaintiff  and  her  sisters  were  subject 
to  a  general  power  of  appointment  in  the  father,  which  by  his  death 
without  execution  had  ceased.  In  many  other  cases  also  the  court  has 
executed  articles  at  the  instance  of  collaterals,  as  being  within  the  con- 
sideration of  the  marriage. (_^) 

r  *il  1       *§  ^^^'  '^^*^  principle  that  has  thus  been  applied  to  collaterals 
I-         -J  applies  also  to  appointees  of  the  wife^  claiming  under  a  power 

{d)  In  Hill  V.  Gomme,  5  My.  &  Cr.  2.')4. 

(c)  Goring  v.  Nash,  3  Atky.  18G;  Davenport  v.  Bishop,  1  Y.  &  C.  C.  C.  451 ;  S. 
C.  1  Phil.  698. 

(/)  ?,  Atky.  186. 

{g)  Edwards  v.  Countess  of  Warwick,  2  P.  Wras.  171  ;  Osgood  v.  Strode,  id. 
245  ;  Vernon  v.  "Vernon,  id.  594,  affirmed,  1  Bro.  P.  C.  267  ;  Stephens  v.  Trueraan, 
1  Ves.  Sen.  73  ;  Pulvertoft  v.  Pulvertoft,  18  Ves.  84,  92. 


A  STRANGEll  TO  THE  CONTRACT.  57 

inserted  in  the  articles;  for,  altlioucrli  as  between  the  wife  and  themselves 
they  are  volunteers,  yet  they  take  by  virtue  of  a  gift  made  by  the  wife, 
who  is  not  a  volunteer  but  a  purchaser,  and  therefore,  as  between  them- 
selves and  the  husband,  they  claim  under  and  stand  in  the  place  of  a 
purchaser,  (/i) 

§  110.  The  case  of  Sutton  v.  Chetwynd,(/)  before  Sir  William  Grant, 
offers  something  of  an  impediment  to  this  current  of  authorities.  In  the 
will  of  Lady  Bath's  mother  there  was  an  ultimate  remainder  given  to 
Sir  Richard  Sutton,  the  plaintiff,  who  was  a  stranger.  On  the  marriage 
of  Lady  Bath  it  was  agreed  by  articles  that  the  estate  in  question  should, 
in  the  events  which  happened,  follow  the  limitation  of  this  will.  The 
court  refused  specifically  to  execute  these  articles  at  the  suit  of  the  plain- 
tiff. The  case  as  reported  appears  not  to  have  been  approved  of  by  Lord 
Eldon ;(/.:)  and  in  a  subsequent  case0  it  was  explained  by  Lord  Cotten- 
ham.  "The  covenant,"  said  his  lordship,  <<  was  between  Lady  Bath 
and  the  trustees  only.  There  was  no  consideration  moving  from  them 
or  from  Sir  llichard  Sutton.  With  respect  to  Sir  James  Pulteney  (the 
husband)  he  merely  consented  to  the  settlement.  Lady  Bath  did  not 
covenant  with  him." 

§  111.  It  is  to  be  observed  that  in  none  of  the  cases  has  a  collateral 
enforced  the  articles  against  the  covenantor  solely  on  the  ground  of  rela- 
tionship ;  but  in  each  case,  the  party  who  had  exacted  the  stipulation 
was  dead  without  having  in  any  way  released  it,  and  the  claimants  have 
sought  to  stand  in  the  place  of  the  party  who,  for  a  valuable  r-^jr  -i 
*consideration  as  regards  the  original  settlement,  had  exacted  L  J 
the  stipulation  sought  to  be  enforced. (m)  It  does  not  therefore  follow 
that  the  original  parties  to  the  settlement  could  not  release  it  as  against 
collaterals,  or  that  collaterals  could  enforce  it  against  such  parties,  sup- 
posing them,  or  those  of  them  through  whom  the  collaterals  claimed,  to 
be  alive  and  resisting  performance. fn) 

§  112.  (2)  There  is  a  class  of  cases  where  the  nearness  of  relationship 
of  one  party  to  the  contract  with  the  party  to  be  benefited  by  it, 
is  said  to  give  to  the  latter  the  benefit  of  the  consideration  and  a 
right  to  sue  on  the  contract.  The  Physician's  case(o)  is  the  leading 
authority  on  this  point :  there  A.  made  a  promise  to  his  physician,  that, 
if  he  would  effect  a  certain  cure,  he  would  pay  a  sum  of  money  to  the 
physician's  daughter ;  and  it  was  held  that  she  might  sue.  In  another 
case(7j)  in  assumjjsit  the  plaintiffs,  who  were  husband  and  wife,  declared 
that  the  wife's  father,  being  seised  of  lands  which  had  subsequently  de- 
scended to  the  defendant,  was  about  to  fell  £1000  worth  of  timber  to 
raise  a  portion  for  his  said  daughter ;  and  the  defendant  promised  the 
father  that,  if  he  would  foi'bear  to  fell  the  timber,  he  would  pay  the 
daughter  £1000.     A  verdict  was  found  for  the  plaintiffs ;  but  it  was 

(h)  Campbell  v.  Ingilby,  21  Beav.  5G7,  affirmed,  26  L.  J.  Ch.  654,  (L.  J.  J.) 
(i)  3  Mer.  249.  (k)  S.  C.  T.  &  R.  29G. 

(l)  In  Davenport  v.  Bishopp,  1  Phil.  704;  and  see  S.  C.  2  Y.  &  C.  C.  C.  451,462. 
(m)  See  2  Spence,  Eq.  Jur.  284,  n.  («)  Hill  v.  Gomme,  1  Beav.  540. 

(o)  Cited  1  Ventr.  6. 

(p)  Dutton  v.  Pool,  1  Ventr.  318,  332  :  p^r  Lord  Mansfield  in  Martvn  v.  Hind, 
Cowp.  443. 


58       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

moved,  in  arrest  of  judgment,  that  the  father  alone  could  have  brought 
the  action,  but  not  the  husband  and  wife  :  but  after  two  arguments,  the 
objection  was  overruled  on  the  ground  of  the  nearness  of  relationship. 

§  113.   (3)  It  seems  that  another  exception  may  arise  to  the  general 
principle,  that  a  stranger  taking  a  benefit  under  a  contract  cannot  sue 
on  it,  in  cases  where  the  contract  is  of  such  a  nature  and  has  been  so  far 
acted  upon  as  to  change  the  condition  in  life  of  the  stranger,  and  to 
^  raise  *reasonable  expectations  in  him,  grounded  on  the  contract. 

L  -I  Such  a  case  might  be  presented  by  an  agreement  between  A.,  a 
rich  man,  and  B.,  a  poor  one,  that  A.  should  take  B.'s  child,  bring  him 
up  as  a  gentleman,  and  leave  him  certain  property,  and  a  part-perform- 
ance of  this  on  A.'s  part.  But  here,  any  right  which  the  child  of  B. 
might  have  to  insist  on  the  contract  is  derived,  not  from  the  contract 
itself  but  from  the  conduct  of  A.  in  pursuance  of  it,  and  the  wrong 
which  he  would  sustain,  if  the  contract  were  carried  out  in  part  and  not 
in  whole.  For  no  such  equity  would  exist  where  the  contract  remained 
entirely  in  abeyance. (5') 


[*47]  ^CHAPTER   III. 

OF  THE  DEATH  OF  A  PARTY  TO  THE  CONTRACT. 

§  114.  The  general  rule,  that  parties  to  the  contract  must  alone  be 
parties  to  the  suit,  is  further  modified  by  certain  circumstances,  one  of 
which,  namely,  the  death  of  a  party  to  the  contract,  will  now  be  consi- 
dered. By  this  circumstance,  with  the  exception  to  be  mentioned  here- 
after,(a)  the  obligation  to  perform,  and  the  right  to  call  for  the  perform- 
ance of,  the  contract,  devolve  on  the  representatives  of  the  party  dying. 

§  115.  If  the  vendor  of  real  estate  die  before  completion,  the  contract 
may  be  enforced  either  by  the  purchaser(i)  or  by  the  personal  represen- 
tative of  the  vendor  ;(c)  but  in  both  cases  the  heir((A  or  devisee(e)  must 
be  a  party,  as  having  an  interest  in  disputing  the  contract :  and  it 
makes  no  diff'erence  that  the  legal  estate  is  outstanding  in  a  trustee.(/) 
As  a  purchaser  has  no  right  to  insist  on  having  the  will  proved  against 
the  heir,  he  is  not  a  necessary  party  where  there  are  devisees  of  the 

(q)  Hill  V.  Gomme,  1  Bear.  540  ;  S.  C.  5  My.  &  Cr.  250  ;  Lyons  v.  Blenkin,  Jac. 
245. 

(a)  See  post,  §  122. 

(b)  Hinton  v.  Hinton,  2  Ves.  Sen.  631;  Barker  v.  Hill,  2  Rep.  in  Ch.  218. 

(c)  Baden  v.  Countess  of  Pembroke,  2  Vcrn.  212. 

{d)  Roberts  v.  Marchant,  1  Ha.  54T  ;  S.  C.  1  Phil.  3T0  ;  Lacon  v.  Mertins,  3 
Atky.  1. 

(e)  Gallon  v.  Emuss,  1  Coll.  C.  C.  243.  As  to  the  cestuis  que  trust  of  real  es- 
tate devised  in  trust,  see  now  15  &  IG  Yict.  c.  86.  s.  42,  rule  9. 

(/)  Roberts  v.  Marchant,  I  Ha.  547. 


DEATH  OF  A  PARTY  TO  THE  CONTRACT.       59 

estate  in  question. (y)  Where  the  heir  is  *an  infant,  a  difficulty  r  *  <  o  -i 
formerly  arose  ;(A)  but  this  is  now  overcome  by  the  7th  section  L  J 
of  the  Trustee  Act,  1850,  by  which  it  is  enacted  that,  where  an  infant 
shall  be  seised  or  possessed  of  any  lands  upon  any  trust,  it  shall  be  law- 
ful for  the  Court  of  Chancery  to  make  an  order,  vesting  such  lands  in 
such  person  or  persons  in  such  manner  and  for  such  estate  as  the  said 
court  shall  direct. (V) 

§  116.  Where  the  vendor  leaves  a  widow,  who,  but  for  the  contract, 
would  be  entitled  to  freebench,  the  contract  may  be  enforced  against 
her,  and  she  must  be  a  party  -J/c)  and  the  same  practice  must  be  pursued 
in  cases  of  dower  of  widows  married  since  the  1st  of  January,  1834. (^) 

§  117.  Where  a  binding  contract  has  been  made  by  a  vendor  who 
subsequently  dies,  it  would  seem  that  if  the  executors  decline  to  enforce 
the  performance,  or  to  compel  the  purchaser  to  do  so,  a  suit  might  be 
instituted  for  the  purpose  of  executing  the  contract  by  the  creditors  of 
the  deceased  vendor  against  the  executors  and  heir  of  the  vendor  and 
the  purchaser. ('7?i) 

§  118.  If  the  purchaser  die  before  completion,  the  contract  may  be 
enforced  either  by  or  against  the  vendor  or  the  heir  or  devisee  of  the  pur- 
chaser ;  the  personal  representative  being  a  party  as  having  an  interest 
in  disputing  the  contract,  and  as  being  the  hand  to  pay  the  purchase- 
money  ;(?t)  and  the  heir  or  devisee  of  the  purchaser  being  a  party  as 
being  the  person  entitled  to  have  the  estate  conveyed  to  him,  and  to 
insist  on  a  proper  inquiry  into  the  title. (o) 

§  119.  The  heir  or  devisee  has  no  right  to  insist  on  the  *com-  ^  ^.^  .. 
pletion  of  a  purchase,  except  where  the  contract  is  such  as  might  L  -' 
have  been  enforced  against  his  ancestor  or  testator ;  for  otherwise  he 
would  be  able  to  take  the  purchase-money  from  the  personal  estate,  in 
order  to  purchase  for  himself  that  which  his  ancestor  was  not  bound  to 
purchase,  and  perhaps  never  would  have  purchased. (j>) 

§  120.  Where,  after  suit  instituted  by  a  vendor  against  a  purchaser, 
and  a  reference  of  title  and  report  in  favour  of  it  has  been  made,  the 
purchaser  dies,  the  court  may,  on  the  application  of  his  real  and  personal 
representatives,  order  the  plaintiff  to  revive,  or,  in  default  thereof,  that 
his  bill  shall  stand  dismissed. (5) 

§  121.  Where  a  person  who  has  agreed  to  take  a  lease  dies,  the  exe- 
cutors admitting  assets  may  be  compelled  to  take  a  lease,  the  covenants 

(ff)  Harris  v.  lugledew,  3  P.  Wms.  91  ;  Cotton  v.  Wilson,  id.  190;  Wakeman  v. 
Countess  of  Rutland,  3  Yes.  2.J3  ;  Morrison  v.  Arnold,  19  Ves.  6T0;  Beales  v.  Lord 
Rokeb}-,  2  Mad.  227. 

(h)  Bullock  V.  Bullock,  1  J.  &W.  603. 

(?)  In  re  Howard,  5  De  G.  &  Sm.  435. 

(k)  Hinton  v.  Hinton,  2  Ves.  Sen.  631,  638;  Brown  v.  Raiudle,  3  Ves.  256. 

(/)  3  &  4  Wm.  IV.  c.  105. 

(m)  See  Johnson  y.  Legard,  T.  &  R.  281  ;  1  Mad.  Ch.  369. 

(n)  Buckmaster  v.  Harrop,  7  Ves.  341  ;  S.  C.  13  Ves.  456,  where  the  residuary 
legatees  were  made  parties;  and  see  Holt  v.  Holt,  2  Vern.  322. 

(0)  Townsend  v.  Champeruowne,  9  Pri.  130. 

(p)  Broome  v.  Monck,  10  Ves.  597;  Savage  v.  Carroll,  1  Ball  &  B.  265,  281  ; 
Collier  v.  Jenkins,  You.  295. 

(?)  Norton  v.  White.  2  De  G.  M.  &  G.  678. 


60       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

beino-  so  qualified  as  that  the  executors  shall  be  no  further  liable  thereon 
than  they  would  have  been  on  the  covenants  which  ought  to  have  been 
entered  into  by  their  testator.(r) 

§  122.  An  exception  to  the  devolution  of  the  liability  to  perform  con- 
tracts, by  the  death  of  one  of  the  parties,  arises  in  all  cases  in  which  the 
personal  skill  or  taste  of  one  of  the  contracting  parties  is  required;  for 
in  such  cases  the  death  of  that  party  discharges  the  contract,  and  exempts 
his  personal  representatives  from  liability  for  the  breach  of  contracts, 
occasioned  by  non-performance  after  his  decease,(s) — an  exception  obvi- 
ously grounded  on  the  same  principle  as  the  non-assignability  of  such 
contracts,  hereafter  considered.  ((•)  On  this  principle  it  has  been  decided 
that,  if  an  author  contract  to  complete  a  work,  and  die  before  doing  so, 

.  _„  ^  his  executors  will  be  discharged  from  *the  contract ;(m)  or,  if  a 
L  -I  master  contract  to  teach  an  apprentice,  and  die  before  the  expi- 
ration of  the  term,  his  representatives  will  be  equally  excused. (v)  And 
in  one  case  an  agreement  to  build  a  lighthouse  was,  from  the  skill  and 
science  involved  in  its  performance,  held  to  be  a  personal  contract. (?'') 
This  principle  would,  of  course,  apply  as  much  in  suits  for  specific  per- 
formance as  in  actions  for  damages. 


[*51]  *CHAPTER  IV. 

OF  AN  ASSIGNMENT  OF  THE  AGREEMENT  OR  OF  THE  PROPERTY. 

§  123.  In  a  general  way  the  benefit  of  an  agreement  may  be  assigned 
in  equity,  and  the  assignee  can  enforce  specific  performance  of  it,  making 
his  assignor  a  party.(a)  Thus  for  example,  where  a  lease  with  a  cove- 
nant to  renew  became  vested  by  assignment  in  the  plaintiff,  he  was  held 
entitled  to  sue  the  covenantor  for  a  renewal  :(i)  and  where  there  was  an 
agreement  for  a  lease,  which  contained  nothing  to  show  that  it  was 
made  specifically  and  personally  with  the  assignor,  and  the  assignee  was 
solvent,  the  agreement  was  enforced  in  favour  of  the  assignee. (c)  Simi- 
larly, where  there  is  nothing  personal  in  the  contract  or  the  motives  to 
it,  a  person  who  has  appeared  as  agent  may  afterwards  disclose  himself 

(r)  Phillips  V.  Everard,  5  Sim.  102;  Stephens  v.  Hotham,  1  K.  &  J.  571.  See 
also  Page  v.  Broom,  3  Beav.  36. 

(s)  Per  Lord  Wensleydale  in  Siboni  v.  Kirkman,  1  M,  &  W.  423. 

(/)  See  post,  §  126. 

{u)  Marshall  v.  Broadhurst,  1  Tyrw.  349 ;  S.  C.  1  Crompt.  &  Jer.  405. 

(v)  Baxter  v.  Burfield,  2  Str.  1266. 

(w)  Per  Patteson,  J.,  in  Wentworth  v.  Cock,  10  A.  &  E.  45. 

(a)  As  to  a  sub-purchaser,  see  ante,  §  82. 

(b)  Duke  V.  Mayor  of  Exon,  2  Freem.  183.  See  also  Vandenanker  v.  Desbrough, 
2  Vern.  96;  Moyses  v.  Little,  id.  194. 

(c)  Crosbie  v.  Tooke,  1  My.  &  K.  431  ;  Morgan  v.  Rhodes,  id.  435.  But  see 
Dowell  V.  Dew,  1  Y.  <fe  C.  C.  C.  345,  where  V.  C.  K.  Bruce  refused  to  grant  spe- 
cific performance  of  an  agreement  for  a  lease  to  an  assignee,  except  upon  the  terms 
of  the  assignor's  entering  into  the  covenants  of  the  lease.     See  post,  §  126. 


ASSIGNMENT    OF    AOREEMENT    OR    PROPERTY.  Gl 

as  a  principal,  and  enforce  the  contract  in  his  own  nanic.f'/)  And  where 
A.  contracted  for  an  estate  from  ]1,  A.  having  previously  agreed  with 
C.  to  sell  the  estate  to  hiui,  and  H.  resisted  performance  on  this  amongst 
other  grounds ;  the  price  being  adequate,  and  *B.  not  suggesting  ^  ^^^^  ^ 
that  he  had  ever  refused,  or  was  unwilling,  or  would  have  objected  L  ^  J 
to  treat  with  C,  or  might  have  obtained  better  terms  from  him,  had 
he  known  the  real  circumstances  of  the  case,  specific  performance  was 
granted  at  the  suit  of  A.  and  C.(e) 

§  124.  An  assignee  of  an  agreement  by  way  of  mortgage  may  enforce 
his  security  by  means  of  specific  performance.  Thus,  in  a  recent  case,(/) 
it  appears  to  have  been  decided  by  Yice-Chancellor  Wood,  that  where 

A.  agreed  to  sell  certain  property  to  B.,  and  then  mortgaged  his  interest 
under  this  agreement  to  C,  and  C.  assigned  his  mortgage  to  D.,  J). 
might  maintain  a  bill  against  the  purchaser  B.  for  the  performance  of 
the  original  agreement  between  him  and  A. 

§  125.  The  assignability  of  contracts  in  equity  is  however  subject  to 
some  exceptions  and  limitations,  which  mostly  fall  under  one  or  other  of 
the  following  classes,  viz :  (1)  where  the  contract  is  personal;  (2)  where 
the  agreement  contains  a  provision  against  assignment;  and  (3)  where 
the  assignment  is  illegal  or  contrary  to  public  policy. 

§  120.  (1)  It  is  an  obvious  principle  of  natural  law,  that  where  the 
learning,  skill,  solvency,  or  any  personal  quality  of  one  of  the  parties  to 
the  contract  is  a  material  ingredient  in  it,  then  the  contract  can  be  per- 
formed by  him  alone.     It  may  be  a  matter  of  indifi"erence  to  A.  whether 

B.  or  C.  be  the  purchaser  of  the  stock  or  shares  he  is  selling ;  but  it  is 
a  matter  of  great  moment,  whether  a  distinguished  artist,  or  his  nominee 
paint  a  picture  for  which  A.  may  have  agreed  to  pay  a  certain  sum. 
Accordingly,  in  the  case  of  contracts  of  the  latter  kind,  it  is  not  com- 
petent to  a  person,  who  has  appeared  as  agent  for  a  principal  on  whose 
personal  qualities  reliance  has  been  placed,  to  show  himself  *to  p;;:-.^-] 
be  the  principal  and  to  sue  in  his  own  name  :(<7)  in  respect  of  L  -• 
such  contracts  bankruptcy  confers  no  claim  on  the  assignees  ;(/<)  and 
the  benefit  of  such  contracts,  accordingly,  is  incapable  of  being  assigned. 
Thus,  where  a  contract  established  a  personal  relation  between  an  author 
and  his  publisher,  it  was  held  that  it  was  incapable  of  assignment.(n 
So  also  where  a  lessee  in  insolvent  circumstances  suifered  another  person 
to  become  the  apparent  owner  of  the  farm,  but  with  a  secret  trust  for 
himself,  and  the  landlord,  supposing  the  trustee  to  be  the  rightful  owner 
and  trusting  to  his  solvency,  entered  into  an  agreement  with  him  to 
grant  him  a  new  lease,  in  a  suit  by  the  original  lessee  against  the  land- 
lord, specific  performance  of  this  agreement  was  refused,  the  court  con- 
sidering that  the  landlord  had  entered  into  the  agreement,  expecting  to 
have  the  covenants  of  a  man  of  substance,  which  he  could  not  do,  as  there 

(d)  Fellowes  v.  Lord  Gwydyr,  1  R.  &  My.  83. 

(e)  Nelthorpe  v.  Holgate,  1  Coll.  C.  C.  203. 

(/)   Browne  v.  London  Necropolis  Company,  Week.  Rep.  1857-1858,  188. 
Iff)  Per  Alderson,  B.,  in  Rayner  v.  Grote,  15  M.  &  W.  365.     See  ante.  |  1 22. 
ih)  Per  Abingcr,  L.  C.  B.,  in  Gibson  v.  Carruthers,  8  M.  &  "W.  343. 
(i)  Stevens  v.  Benning,  1  K.  &  J.  1G8. 

November,  1858. — 5 


02       FRY    ON    STECIFIC    PERFORMANCE    OF    CONTRACTS. 

would  be  no  equity  to  compel  the  trustee  to  enter  into  the  covnants.(A.) 
And  so  again,  if  a  landlord  trusts  to  the  skill  of  a  person  who  is  in  fact 
a  secret  trustee,  he  will  not  be  obliged  to  execute  the  agreement  for  the 
cestui  que  trust. (A  How  far,  in  the  case  of  an  ordinary  agreement  for 
a  lease,  the  intended  lessor  r-elies  ou  the  solvency  of  the  intended  lessee 
as  a  personal  qualification,  seems  to  be  a  point  on  which  somewhat  dif- 
ferent views  have  been  taken. (m) 

§  127.  Again  where,  though  the  relation  established  by  the  contract 
may  have  in  it  nothing  personal,  some  previous  personal  relation  of  favour, 
r  *Pil  1  *''■'  otherwise,  between  the  "^contracting  parties  has  been  a  mate- 
L  J  rial  motive  to  the  contract,  it  can  be  enforced  by  that  person  only, 
and  not  by  a  concealed  cestui  que  trust  or  principal.  This  is  illustrated 
by  the  case  of  Phillips  v.  Duke  of  Buckingham  ;(n^  a  negotiation  had 
been  entered  into  between  the  plaintiff  and  the  duke  for  the  purchase  of 
an  estate  by  the  plaintiff,  which  had  gone  off;  the  plaintiff  then  got  the 
secretary  of  Lord  Chancellor  Nottingham  to  enter  into  a  negotiation  on 
his  behalf,  but  pretending  it  to  be  for  the  lord  chancellor,  or  his  sou  the 
solicitor-general :  the  duke  had  several  cases  depending  in  chancery, 
and,  wishing  to  oblige  the  lord  chancellor,  entered  into  articles ;  but  on 
discovering  who  was  the  real  purchaser,  refused  to  complete :  according 
to  the  report  in  Vernon,  the  plaintiff's  bill  was  dismissed,  and  the  case 
is  considered  an  authority  for  the  principle  established  by  such  dis- 
missal ;  for,  though  it  appears  that  specific  performance  was  ultimately 
granted,  it  seems  to  have  been  only  on  payment  by  the  plaintiff  of  the 
full  value  of  the  estate,  being  a  sum  greater  than  that  originally  agreed 
on.(o)  Lord  Thurlow  showed  an  inclination  to  disregard  these  personal 
motives,  considering  it  to  be  immaterial  in  a  contract  for  an  annuity,  that 
a  defendant  was  in  fact  a  trustee  for  the  son  of  the  plaintiff,  with  whom 
he  had  refused  to  deal.(p)  But  Lord  Eldon  expressed  dissatisfaction 
with  that  decision;  and  it  seems  to  be  clearly  established,  that  motives 
of  kindness  towards  the  trustee,  or  feelings  of  dislike  to  the  concealed 
beneficiary,  when  known  to  the  other  party,  may  bar  a  specific  perform- 
ance at  the  suit  of  the  person  on  whose  behalf  the  ostensible  principal 
contracted.  (5) 

J-  ^r-  -,  §  128.  The  same  principle  of  course  applies  to  ^assignment : 
L  -I  so,  where  an  agreement  for  a  lease  was  entered  into  by  a  lady 
with  her  son-in-law  for  his  personal  accommodation  in  the  mansion-house 
and  demesne  lands,  in  the  nature  of  a  family  transaction,  the  court  re- 
fused specific  performance  at  the  suit  of  his  assignees  in  bankruptcy. (?•) 

(k)  O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  123. 

(i)  S.  0. ;  per  Sir  W.  Grant  in  Featherstonaugh  v.  Fenwick,  17  Vcs.  313. 

(m)  Crosbie  v.  Tooke,  Morgan  v.  Rhodes,  Dowoll  v.  Dew,  ante,  ^  123.  See  also 
iStocker  v.  Dean,  IG  Beav.  IGl,  where,  from  the  personal  nature  of  acts  to  be  done, 
a  right  of  pre-emption  was  held  to  be  limited  to  the  life  of  the  person  who  had  to 
do  them. 

(n)  1  Vern.  227.     See  also  Harding  v.  Cox,  1  Vern.  227,  n. 

(0)  Sec  Raithby's  note  to  the  ease  in  Vernon,  1  Sag.  Vend.  349,  n.,  10th  ed. 
See  also  Scott  v.  Langstaffe,  cited  Lofft,  797. 

(p)  Lord  Irnham  v.  Child,  1  Bro.  C.  0.  92.  See  also  Jordan  v.  Sawkins.  1  Ves. 
Jiin.  402;  Fellowes  v.  Lord  Gwydyr,  1  R.  &  My.  83. 

{(j)  Bonnet  v.  Sadler,  14  Ves.  528,  (r)  Flood  v.  Finlay,  2  Ball  &  B.  9. 


ASSIGNMENT    OF    AGREEMENT    0  11    P  K  0  I'  E  K  T  Y.  63 

§  129.  (2)  Where  the  agreement  stipulates  that  the  iustrument  to  be 
executed  in  performance  of  it  shall  contain  a  proviso  against  assignment, 
this  operates  to  prevent,  not  only  an  assignment  of  the  interest  when  per- 
fected, but  also  of  the  agreement  to  grant  it.(.s)  But  the  benefit  of  the 
proviso  may  of  course  be  waived  for  the  purposes  of  specific  performance  ; 
as  where  the  assignee  of  the  intended  lessee  was  recognized  by  the  in- 
tended lessor  as  tenant. (^) 

§  130.  (3)  The  statute  32  Henry  YIIL,  c.  9,  which  is  entitled  the 
bill  of  bracery  and  buying  of  titles,  prohibits  any  person  from  selling  or 
buying  any  pretended  rights  or  titles  to  any  lands,  except  the  vendor  has 
been  in  possession  of  the  same,  or  of  the  reversion,  or  in  receipt  of  the 
rents  thereof  for  a  year  before  the  sale ;  but  it  provides  that  it  shall  be 
lawful  for  the  person  in  possession  to  buy  in  any  pretended  title.  In 
Sharp  V.  Carter,((^)  the  bill  alleging  that  Carter  pretended  some  contract 
with  a  certain  Evans,  who  claimed  under  a  disputed  will  against  the 
plaintiff,  the  heir-at-law,  who  was  in  possession,  a  plea  of  the  statute  was 
allowed  to  the  discovery.  In  Ilitchens  v.  Landor,(r)  a  plea  of  this  sta- 
tute was  allowed,  on  the  ground  that  the  plaintifi"  himself  was  only  entitled 
under  a  contract  for  the  purchase  of  the  estate.  But  the  case  certainly 
appears  to  fall  neither  within  the  mischief  nor  the  language  of  the  statute, 
the  sale  being  <'  not  of  a  pretended  right  or  title,  but  of  the  estate  in  fee 
simple  in  possession,  subject  certainly  to  the  decision  of  a  court  of  equity 
upon  the  right  to  a  specific  *performance."(«-)  In  a  case(a;)  be-  ^  ^.„  .. 
fore  the  Court  of  Common  Pleas,  A.,  the  owner  of  a  term,  died  L  -^ 
in  1828,  and  B.,  his  brother,  who  had  previously  been  in  possession  of 
part  of  the  premises,  then  took  possession  of  the  whole,  and  continued  so 
until  1829,  when  he  died,  leaving  all  his  interest  in  the  property  to  C, 
who  thereupon  entered  and  remained  in  undisputed  possession  until  1841, 
when  D.,  a  brother  of  A.,  the  original  termor,  took  out  administration  to 
him,  and  sold  his  interest  in  the  property,  as  such  administrator,  for  £10  : 
the  transaction  was  held  to  be  void  both  by  the  common  law  and  under 
the  statute. 

§  131.  But  a  transfer  of  an  expectancy  is  not  within  the  mischief  of  the 
statute  ;  for  the  sale  of  an  expectancy  is  not  an  allegation  of  any  present 
right  or  title,  but  of  the  possibility  of  one  thereafter  to  exist. (_y) 

§  132.  The  principle  on  which  the  statute  of  Henry  VIII.  is  founded, 
and  which  gives  rise  to  the  doctrines  of  champerty  and  maintenance, 
namely,  that  persons  ought  not  to  be  allowed  to  come  in  for  the  mere 
purpose  of  litigating  rights  which  others  are  not  disposed  to  enforce, 
applies  to  render  void  some  cases  of  assignment  which  are  not  strictly 
within  the  above  statute.  Thus,  whilst  it  is  clearly  lawful  to  assign  a 
right  at  the  time  undisputed,  and  if,  from  circumstances  afterwards  dis- 

(<)  Weatherall  v.  Geering,  12  Ves.  504. 

(t)  Dowell  V.  Dew,  1  Y.  &  C.  C.  C.  345.  (m)  3  P.  Wms.  375. 

(d)  G.  Coop.  34.     See  also  Wall  v.  Stubbs,  1  Mad.  80 ;  S.  C.  2  V.  &  B.  354. 
(w)  2  Sug.  Vend.  45, 10th  edit. ;  per  Lord  Eldon  in  Wood  v.  Griffith,  2  Swan.  56. 
(x)  Doe  d.  Williams  v.  Evans,  1  C.  B.  717.     See  also,  per  Montague,  C.  J.,  in 
Partridge  v.  Strange,  Plowd.  88. 
(y)  Cook  V.  Field,  15  Q.  B.  460. 


64   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

covered,  a  necessity  arises  for  litigation  against  tbird  parties,  the  assignee 
may  maintain  his  bill  in  equity  :(s)  yet  it  is  as  clearly  against  public  policy 
to  allow  of  the  assignment  of  a  mere  naked  right  to  file  a  bill. (a)  On  this 
P  ^-«  -,  ground  the  court  has  refused  its  assistance  *to  enforce  the  per- 
L  J  formance  of  an  agreement  by  a  person  out  of  possession,  to  grant 
a  present  lease  to  a  party  who  is  at  the  time  apprised  that  he  cannot 
obtain  possession  except  by  a  suit.(i) 

§  133.  Upon  principles  of  public  policy  it  seems  that  contracts  by 
which  railway  or  public  companies  seek  to  devolve  business,  or  delegate 
powers,  with  which  they  are  entrusted,  on  persons  to  whom  the  legisla- 
ture has  not  entrusted  them,  and  on  whom  it  has  not  attached  the  same 
responsibilities  that  it  has  on  the  companies,  are  incapable  of  being 
enforced  by  a  court  of  equity. (c) 

§  134.  It  must  be  added  that,  even  where  a  concluded  contract  would 
be  assignable,  the  benefit  of  an  offer  cannot,  it  seems,  be  transferred,  by 
the  person  to  whom  it  is  made,  to  a  third  person.  "  In  case  of  an  offer 
by  A.  to  sell  to  B.,  an  acceptance  of  the  offer  by  C  can  establish  no  con- 
tract with  A.,  there  being  no  privity."((:?) 


§  135.  Where  a  contract  has  been  entered  into  for  the  sale  of  property, 
and  that  property  is  afterwards  aliened  or  assigned,  or  contracted  to  be 
aliened  or  assigned,  and  the  alienee  or  assignee  has  notice  of  the  origi- 
nal contract,  he  is  liable  to  its  performance  at  the  suit  of  the  purchaser. 
''  If,"  said  Lord  St.  Leonards,(e)  '<  the  contract  is  a  binding  one,  it  can 
be  enforced  against  any  party  in  whom  is  vested  the  legal  and  beneficial 
interest  in  the  property."  "If,"  said  Lord  Ilosslyn,(/)  "he  is  pur- 
chaser with  notice,  he  is  liable  to  the  same  equity,  stands  in  his  place  and 
r  *Ko  -\  '^^  bound  to  do  that  which  the  person  he  represents  would  *be 
L  J  bound  to  do  by  the  decree."  This  principle,  which  has  been 
acted  on  in  numerous  cases,(^)  may  be  sufficiently  illustrated  by  a  case(A) 
before  Lord  Nottingham.     The  Earl  of  Salisbury  being  lessee  of  a  col- 

(z)  Wilson  Y.  Short,  6  Ha.  366. 

(a)  Prosser  v.  Edmonds,  1  Y.  &  C.  Ex.  481.  With  the  distinction  between  this 
find  the  preceding  case,  compare  the  distinction  between  furnishing  evidence  for 
the  recovery  of  property  without  a  view  to  litigation,  and  furnishing  evidence  to 
maintain  litigation,  Sprye  v.  Porter,  7  Ell.  &  Bl.  58. 

(h)  Bayly  v.  Tyrrell,  2  Ball  &  B.  358. 

(c)  Johnson  v.  Shrewsbury  and  Birmingham  Railway  Company,  3  De  G.  M.  k 
(}.  914;  Beman  v.  Rufford, 'l  Sm.  N.  S.  550;  S.  C.  7  Rail.  C.  48;  Great  North- 
ern Railwaj-  Company  v.  Eastern  Counties  Railway  Company,  9  Ha.  306. 

{d}  Meynell  v.  Surtces,  3  Sm.  &  Gif.  101,  117. 

(e)  In  Saunders  v.  Cramer,  3  Dr.  &  W.  99. 

(/)  In  Taylor  v.  Stibbert,  2  Ves.  Jun.  437. 

{ff)  Jackson's  case,  5  Vin.  Abr.  543,  pi.  3;  Howard  v.  Hopkins,  2  Atky.  371  : 
Ford  v.  Compton,  2  Bro.  C.  C.  32,  &  Belt's  n.  2  ;  Jalabert  v.  Duke  of  Chandos,  1 
Ed.  372  ;  Brooke  v.  Hewitt,  3  Ves.  253  ;  Knollys  v.  Alcock,  5  Ves.  648  ;  Meux  v. 
Maltby,  2  Sw.  277  ;  Spence  v.  Hogg,  (before  the  V.  C.  of  England  and  Lord  Cotten- 
ham,)  1  Coll.  C.  C.  225;  Dowell  v.  Dew,  1  Y.  &  C.  C.  C.  345  ;  Crofton  v.  Ormsby. 
2  Sch.  &  Lef.  583  ;  Potter  v.  Saunders,  6  Ha.  1 ;  Hersey  v.  Giblett,  18  Beav.  174  : 
Shaw  V.  Thackray,  1  Sm.  &  G.  537  ;  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.  90 : 
and  Dyas  v.  Cruise,  2  Jon.  &  Lat.  460,  where  an  agreement  for  a  lease  was  en- 
forced against  a  provisional  assignee  in  insolvency. 

(/()■  Fincli  v.  Earl  of  Salisbury  and  Hawtrey,  Finch,  212. 


ASSIGNMENT    OF    AGIIEEMENT    OK    PROPERTY.  G5 

lege  lease,  made  a  sub-lease  of  certain  coppice-land  to  the  plaintiff  for 
fourteen  years,  and  covenanted  to  take  a  new  lease  from  the  college,  and 
to  renew  the  plaintiff's  lease  with  an  addition  of  three  years  more  to  it, 
or  answer  the  want  thereof  in  damages,  for  that  the  wood  granted  to  the 
plaintiff  by  that  lease  was  to  be  full  fourteen  years'  growth  before  it  could 
be  cut :  the  earl  renewed  and  assigned  his  lease  to  Hawtrey,  who  had 
notice  of  the  earl's  covenant  with  the  plaintiff;  and  he  was  accordingly 
decreed  to  execute  to  the  plaintiff  a  new  lease  with  the  additional  three 
years,  in  pursuance  of  the  earl's  covenant.  And  where  a  person  having 
a  prior  title  gets  in  the  subsequent  estate  which  is  affected  by  the  con- 
tract, and  has  notice,  he  cannot  protect  himself  from  the  performance  of 
the  contract  by  his  elder  title:  thus,  where  an  equitable  mortgagor  entered 
into  an  agreement  for  a  lease,  and  then  the  mortgagee,  whose  mortgage 
was  prior  to  the  agreement,  bought  the  estate  with  notice,  he  was  held 
bound  to  specifically  perform  the  agreement :(«)  and  again,  where  A., 
having  only  the  equity  of  redemption,  agreed  to  sell  to  B.,  and  subse- 
quently both  A.  and  his  mortgagee  conveyed  to  C,  who  had  notice  of 
A.'s  *contract  with  B. ;  B.  might  enforce  specific  performance  j-  ^-^^  -. 
against  C.(/.-)  L      '  ^ 

§  136.  This  principle  of  notice,  under  somewhat  peculiar  circum- 
stances, was  applied  by  Lord  Eldon  in  the  case  of  Mortlock  v.  BuUer :(/) 
there  the  plaintiff  alleged  that  a  contract  had  been  entered  into  by  trus- 
tees of  a  marriage-settlement,  who  had  a  power  to  sell  with  the  consent 
of  the  husband  and  wife  :  after  the  bill  was  filed,  the  wife  died,  and  the 
husband's  estate  for  life  and  remainder  in  fee  were  brought  together, 
and  the  legal  power  of  sale  in  the  trustees  extinguished.  But  Lord 
p]ldon  said  that,  if  the  purchaser  had  entered  into  the  contract  with  the 
approbation  of  the  husband  and  wife  as  was  required  by  the  settlement, 
the  contract  bound  the  estate,  and  should  be  made  good  by  those  who 
took  interests,  if  it  could  not,  out  of  the  power. 

§  137.  The  principle  is  not  confined  to  contracts  for  sale,  but  applies 
equally  to  all  agreements  and  covenants  which  bind  the  land  in  equity ; 
for  these  may  in  all  cases  be  enforced  against  any  person  into  whose 
hands  it  may  come  with  notice.  It  is  on  this  principle  that  the  court 
grants  specific  performance  of  covenants  for  perpetual  renewal, (??i)  and 
all  covenants  permanently  affecting  the  enjoyment  of  the  land,  which 
are  enforced  in  equity  against  all  subsequent  purchasers  with  notice, 
whether  they  be  or  be  not  such  as  would  run  with  the  land  in  the  hands 
of  subsequent  purchasers  at  law.(n) 

§  138.  The  court  proceeds  on  the  same  principle  in  the  case  of  cove- 
nants for  further  assurance :  so,  where  a  tenant  in  tail  executes  a  deed 
for  the  benefit  of  his  creditors  with  such  a  covenant,  or  a  mortgage  with 
a  like  covenant,  and  subsequently  becomes  bankrupt,  and  by  the  ^  ^p^  -, 
*operation  of  the  bankruptcy  laws  the  estate  becomes  vested  in  L  ^ 
the  assignees  in  fee  simple,  they  may  be  compelled,  in  the  one  case,  to 

(i)  Smith  V.  Phillips,  1  Ke.  694. 

(k)  Licrhtfoot  V.  Heron,  3  Y.  &  C.  Ex.  586.  (l)  10  Ves.  292,  315. 

(m)  Per  Lord  llardwicke,  in  Furnival  v.  Crew,  3  Atky.  87. 

(n)  Tulk  V.  Moxhay,  2  Ph.  774  ;  Cole  v.  Sims,  Kay,  56. 


66       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

convey  the  estate  in  fee  simple  to  the  trustees  of  the  deed,  and  in  the 
other,  to  redeem  the  mortgage,  or  convey  the  fee  to  the  mortgagee. (o) 

§  139.  And  so  contracts  to  devise  lands  have   been  enforced  against 
persons  claiming  them  under  the  party  contracting  to  make  the  will.^p] 


§  140.  One  particular  species  of  assignment  of  a  contract  arises  in  the 
cases  in  which  a  railway  or  other  public  company  has  entered  into  an 
agreement,  and  subsequently  becomes  amalgamated  with  some  other  com- 
pany :  for  by  this  process  the  liability  under  the  contracts  of  the  existing 
companies  is  transferred  to  the  new  body  which  arises  out  of  their 
fusion.  (2) 


[*61]  *CHAPTER   V. 

OF   THE   LIABILITY    OF    COMPANIES   FOR   THE   CONTRACTS    OF   THEIR 

PROMOTERS. 

§  141.  Another  very  important  exception  to  the  general  rule,  as  to 
parties  to  the  contract  alone  being  parties  to  the  suit,  is  furnished  by 
the  doctrine  introduced  and  acted  on  by  Lord  Cottenham,  that  a  public 
company,  after  incorporation,  may  be  sued  for  the  specific  performance 
of  contracts  entered  into  before  the  passing  of  its  act  by  the  promoters, — 
on  the  ground  that  the  company  stands  in  the  place  of  the  promoters,  or, 
to  use  the  language  of  Lord  Jeffrey,  in  the  Court  of  Session,  that  the 
fact  of  "  a  party  having  passed  from  the  chrysalis  to  the  butterfly  state"(o) 
creates  no  difficulty  in  the  enforcement  of  such  a  contract.  The  prin- 
ciple was  first  introduced  by  the  case  of  Edwards  v.  The  G  rand  Junction 
Railway  Company  :(b\  there  Mr.  Moss,  who  was  the  agent  of  the  promo- 
ters of  a  railway,  entered  into  an  agreement  with  the  trustees  of  a  public 
highway,  whilst  the  railway  bill  was  before  parliament,  by  which  Mr. 
Moss  agreed  that  he  would  enter  into  an  agreement  to  the  eff"ect  of  cer- 
tain clauses  which  the  trustees  had  been  desirous  to  have  inserted  into 
the  bill,  and  would  get  the  same  confirmed  under  the  seal  of  the  company 

(0)  Edwards  v.  Applebee,  2  Bro.  C.  C.  G52.  n. ;  Pje  v.  Daubuz,  3  Bro.  C.  C. 
595 ;  per  Lord  Thurlow  ia  Tourle  v.  Rand,  2  Bro.  C.  C.  652. 

(jo)  Goylmer  v.  Paddiston,  2  Ventr.  353 ;  S.  0.  as  Goilmere  v.  Battison,  1  Verii. 
48.  And  see  further,  as  to  agreements  to  make  wills  containing  particular  dispo- 
sitions, Lord  Walpole  v.  Lord  Orford,  3  Ves.  402  ;  Jones  v.  Martin,  5  Ves.  2G6,  u. ; 
Fortescue  v.  Hennah,  19  Ves.  67  ;  Needham  v.  Kirkman,  3  B.  &  A.  531  ;  Needham 
V.  Smith,  4  Russ.  318;  Logan  v.  Wienholt,  1  CI.  &  Fin.  611;  Jones  v.  How,  7 
Ha.  267  ;  S.  S.  9  C.  B.  1 ;  Barkworth  v.  Young,  4  Drew,  1 ;  Eyre  v.  Menro,  26  L. 
J.  Ch.  757. 

(7)  Stanley  v.  Chester  and  Birkenhead  Railway  Company,  9  Sim.  264;  S.  C.  •> 
My.  &  Cr.  773  ;  Earl  of  Lindsey  v.  CJreat  Northern  Railway  Company,  10  Ha.  664, 
where  the  cases  of  amalgamation  cstablisliing  this  principle  are  discussed. 

(«)  Caledonian  and  Dumbartonshire  Junction  Railway  Co.  v.  the  Magistrates 
of  Helensburgh,  2  M'Q.  394. 

(b)   1  My.  &  Cr.  050  ;  S.  C.  I  Rail.  C.  173  ;  before  the  V.  C,  7  Sim.  337. 


INCORPORATED    COMPANY.  67 

intended  to  be  incorporated, — tlie  agreement  being  expressed  to  be  made 
on  the  understanding  tliat  the  trustees  should  offer  no  opposition  to  the 
bill.  *and  that  the  agreement  should  be  void  on  Mr.  Moss's  de-  p  ^p,^  -, 
livering  to  the  trustees  the  engagement  of  the  intended  company  L  "^  J 
to  the  same  effect.  The  bill  passed;  the  company  proposed  to  make  a 
road  across  the  railway  of  a  narrower  width  than  that  stipulated  for  by 
the  clauses  before-mentioned  :  on  a  bill  filed  by  the  trustees  against  the 
company,  for  a  performance  of  the  agreement,  and  an  injunction,  the 
company  was  held  to  be  bound  by  the  agreement  entered  into  by  the 
promoters  before  incorporation.  «The  question,"  said  Lord  Cottenham, 
in  delivering  judgment, (r)  <' is  not  whether  there  be  any  binding  con- 
tract at  law,  but  whether  this  court  will  permit  the  company  to  use  their 
powers  under  the  act  in  direct  opposition  to  the  arrangement  made  with 
the  trustees  prior  to  the  act,  upon  the  faith  of  which  they  were  permitted 
to  obtain  such  powers.  If  the  company  and  the  projectors  cannot  be 
identified,  still  it  is  clear  that  the  company  have  succeeded  to,  and  are 
now  in  possession  of,  all  that  the  projectors  had  before :  they  are  entitled 
to  all  their  rights,  and  subject  to  all  their  liabilities.  If  any  one  had 
individually  projected  such  a  scheme,  and,  in  prosecution  of  it,  had 
entered  into  arrangements,  and  then  had  sold  and  assigned  all  his  interest 
in  it  to  another,  there  would  be  no  legal  obligation  between  those  who 
had  dealt  with  the  original  projector  and  such  purchaser;  but  in  this 
court  it  would  be  otherwise.  So  here,  as  the  company  stand  in  the  place 
of  the  projectors,  they  cannot  repudiate  arrangements  into  which  sucli 
projectors  had  entered:  they  cannot  exercise  the  powers  given  by  parlia- 
ment to  such  projectors,  in  their  corporate  capacity,  and  at  the  same 
time  refuse  to  comply  with  those  terms,  upon  the  faith  of  which  all  oppo- 
sition to  their  obtaining  such  powers  was  withheld."  The  same  principle 
was  subsequently  acted  on  by  his  lordship  in  the  cases  of  Stanley  v.  The 
Chester  and  Birkenhead  Railway  Company,(f/)  *and  Lord  Petre  ^  ^^^  -, 
V.  The  Eastern  Counties  Railway  Company. M  L         J 

§  142.  The  conditions  under  which  the  doctrice  in  question  is  appli- 
cable, if  they  have  not  been  narrowed  by  subsequent  cases,  have  at  least 
been  more  clearly  defined  than  they  were  in  the  cases  already  referred 
to.  These  conditions  seem  to  be,  (1)  that  the  company  must  have  taken 
the  benefit  of  the  agreement :  and  (2)  that  the  agreement  must  be  for 
something  warranted  by  the  terms  of  the  incorporation. 

§  143.  First,  the  company  itself,  after  incorporation,  must  have  taken 
the  benefit  of  the  agreement.  It  is  not  enough  that  the  opposition  to 
the  intended  bill  was  withdrawn,  as  that  is  a  consideration  moving,  not 
to  the  company,  but  to  the  promoters.  There  must  be  an  adoption  of 
the  contract  by  the  enjoyment  of  the  consideration.  Therefore,  where  a 
company  was  incorporated  in  consequence  of  the  withdrawal  of  the  plain- 
tiff's opposition,  but  after  that  event  they  had  not  entered  upon  any  of 

(c)  1  My.  &  Cr.  G72. 

(d)  3  My.  &  Cr.  773 ;  S.  C.  1  Rail.  C.  58;  before  the  V.  C,  9  Sim.  204. 

(e)  1  R;iil.  C.  4G2.  See  also,  per  Lord  Cottchmam  in  Grcenhalgh  v.  Manches- 
ter and  Birminghan  Ilailvvaj  Co.,  3  My.  &  Cr.  701  ;  Yauxhall  Bridge  Company  v. 
Earl  Spencer,  Jac.  G4. 


68        FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  land,  or  in  anywise  adopted  the  contract,  except  by  fruitless  negotia- 
tions, the  master  of  the  rolls  refused  specific  performance  of  the  contract, 
and  declined  to  order  the  defendants  to  admit  the  validity  of  the  contract 
in  an  action  at  law;(/)  and  his  honor  acted  on  the  same  principle  in 
the  case  which  shortly  afterwards  came  before  him,  of  Preston  v.  The 
Liverpool,  Manchester  and  Newcastle  Railway  Company. (^^  In  the 
Earl  of  Lindsay  v.  The  Great  Northern  Railway  Company,(/i)  Vice- 
Chancellor  Wood  explained  the  principle  of  these  cases  in  a  way  strongly 
supporting  the  condition  above-stated.  He  considered  that  the  cases  did 
r  *fil  1  *'^*^*'  P'^^^ceed  on  the  principle  of  contract  through  the  agency  of 
L  -1  the  promoters,  but  on  the  principle  that  the  court  will  not  allow 
a  body  to  exercise  powers  acquired  by  means  of  a  previous  contract  and 
arrangement,  without  carrying  that  contract  and  arrangement  into  full 
effect.  To  this  extent,  the  court  acts  negatively ;  but  having  once 
acquired  jurisdiction,  then  its  action  is  positive  as  well  as  negative,  and 
therefore  it  will  not  merely  restrain  the  doing  of  acts  contrary  to  the 
agreement,  but  will  enforce  every  portion  of  it.  Lord  Campbell  also,  in 
his  judgment  in  The  Eastern  Counties  Railway  Company  v.  Hawkes,(A 
supported  the  same  view  of  Lord  Cottenham's  doctrine.  But  it  must  be 
added  that  Lord  St.  Leonards,  from  the  observations  he  made  in  the  last- 
mentioned  case  on  Gooday  v.  The  Colchester  Railway  Company,(A') 
appeared  inclined  to  uphold  that  doctrine  in  its  utmost  generality,  and 
to  hold  that  the  conduct  of  the  directors,  after  the  act,  in  relation  to  the 
execution  of  their  powers,  cannot  absolve  them  from  liability  in  respect 
of  the  benefit  which  they  secured  by  the  withdrawal  of  the  opposition  to 
the  bill. 

§  144.  The  second  condition,  viz.  that  the  agreement  must  be  for 
something  warranted  by  the  terms  of  the  incorporation,  and  which  the 
company  is  therefore  competent  to  perform  under  the  powers  of  its  act, 
is  established  and  illustrated  by  the  case  of  The  Caledonian  and  Dum- 
bartonshire Junction  Railway  Company  v.  the  Magistrates  of  Helens- 
burgh,(A  which  came  before  the  house  of  lords  from  the  Court  of  Ses- 
sion in  Scotland.  The  magistrates  of  Helensburgh  had  agreed  with  the 
promoters  of  the  railway  to  aflbrd  the  projected  company  certain  facili- 
ties for  the  construction  of  the  railway  through  the  town,  and  to  petition 
parliament  in  favour  of  the  bill ;  and  the  promoters  on  their  part  agreed 
that  the  company  should  pay  for  the  making  of  a  quay  and  harbour, 
r  *R'\  1  w^^"^^  *h^  magistrates  *were  to  apply  to  parliament  for  powers 
L  -1  to  make.  Lord  Chancellor  Cranworth,  after  animadverting  on 
the  general  principle  introduced  by  Lord  Cottenham,  decided  the  case 
on  the  ground  that,  in  the  instances  before  that  judge,  the  acts  to  be 
done  were  within  the  powers  of  the  company  when  incorporated,  whereas 
here  the  object  of  the  arrangement  was  to  apply  the  funds  raised  under 
legislative  authority  for  the  purpose  of  the  railway  to  an  object  foreign 

(/)  Gooday  v.  Colchester,  etc.,  Railway  Co.,  17  Beav.  132;  Williams  v.  St. 
(Jeorge's  Harbour  Company,  3  Jur.  N.  S.  1014,  (M.  R.) 

iff)   17  Beav.  115.  (h)   10  Ha.  6G4. 

(i)  5  Ho.  Lords,  356.  {k)  Id.  308. 

(/)  2  M'Q.  391. 


INCORPORATED    COMPANY.  G9 

from  that  of  the  railway,  namely,  the  construction  of  a  pier  and  harbour. 
Again,  in  Preston  v.  The  Liverpool,  Manchester,  and  Newcastle-upon- 
Tyne  Junction  Railway  Company,(m)  Lord  Cranworth  held  that  an 
agreement  to  pay  £5000  to  a  person  for  not  opposing  a  bill  in  parliament 
would  be  ultra  vires  of  a  railway  company  when  incorporated,  and  there- 
fore that  it  could  not  be  enforced  against  the  company  by  reason  of  its 
having  been  entered  into  by  the  promoters. 

§  145.  Not  only  have  these  conditions  been  imposed  on  the  doctrine 
as  laid  down  by  Lord  Cottenham,  but  grave  doubts  have  been  thrown  on 
the  very  principles  of  his  decisions  by  the  Lord  Chancellor  Cranworth 
and  Lord  Brougham  in  the  two  last-cited  cases.  Thus,  in  the  case 
already  referred  to  of  The  Caledonian  and  Dumbartonshire  Junction 
Railway  Company  v.  The  Magistrates  of  Helensburgh,(?()  Lord  Cran- 
worth in  a  written  judgment  which  had  before  its  delivery  received  the 
concurrence  of  Lord  Brougham,  though  deciding  the  case  upon  the 
point  before  mentioned,  fully  considered  the  general  principle  in  ques- 
tion, and  disapproved  of  it.  His  lordship  observed  that  the  doctrine  in 
question  could  be  supported  only  on  the  assumption  that  the  company 
when  incorporated  is  in  substance,  though  not  in  form,  a  body  succeed- 
ing to  the  rights  and  coming  into  the  place  of  the  projectors;  and  then 
proceeded  *to  show  that,  in  his  judgment,  it  is  such  a  body  neither  ^  ^qq  -, 
in  form  nor  in  substance.  The  body  incorporated,  he  argued,  is  L  -J 
not  confined  to  the  projectors,  and  may  even  include  none  of  them  :  the 
act  of  parliament  when  passed  becomes  the  charter  of  the  company,  pre- 
scribing its  duties  and  declaring  its  rights ;  and  all  persons  becoming  share- 
holders have  a  right  to  consider  that  they  are  entitled  to  all  the  benefits 
held  out  by  the  act,  and  liable  to  no  obligation  beyond  those  which  are 
there  indicated  :  that  to  permit  other  terms  to  be  imposed  on  the  share- 
holders behind  the  terms  of  incorporation,  would  lead  to  injury  to  the 
shareholders,  and  often  to  a  fraud,  or  at  least  a  surprise  on  the  legislature; 
and  that,  to  render  special  terms  as  to  particular  cases  or  person  binding 
on  the  company,  they  ought  to  be  the  subject  of  special  clauses  in  the 
Act,  whereby  the  whole  truth  could  be  disclosed,  and  neither  the  legis- 
lature nor  any  person  taking  shares  could  complain.  And  in  the  case  of 
Preston  v.  The  Liverpool,  Manchester,  and  New-castle-upon-Tyne  Junc- 
tion Railway  Company, (o)  Lords  Cranworth  and  Brougham  expressed 
similar  views  of  the  doctrine,  although  the  ground  on  which  they  dis- 
missed the  plaintifi''s  appeal  was  that  the  agreement  was  in  itself  condi- 
tional on  the  construction  of  the  railway.  In  this  state  of  the  authori- 
ties, it  is  difficult  to  speak  with  certainty  as  to  how  far  the  doctrine  iu 
question  is  to  be  considered  as  law  :  on  the  one  hand,  it  has  been  re- 
peatedly acted  on  by  Lord  Cottenham,  and  appears  to  be  adopted  by 
Lords  Campbell  and  St.   Leonards ;  on  the  other  hand,  the  principles 

(to)  5  Ho.  Lords,  605,  621.  See  also  Leominster  Canal  Company  v.  Shrews- 
bury and  Hereford  Railway  Co.,  3  K.  &  J.  654. 

(n)  2  M'Q.  391.  See  also  Williams  v.  St.  George's  Harbour  Company,  3  Jur. 
X.  S.  1014,  (M.  R.) 

(o)  5  Ho.  Lords,  605,  affirming  tiie  M.  R.'s  decision,  17  Beav.  115.  See  same 
case  before  Lord  Cranworth,  as  V.  C,  1  Sim.  X.  S.  586,  as  to  which,  sec  the  case 
before  the  House  of  Lords. 


70       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

upon  which  it  rests  have  been  criticised  by  Vice-Chancellor  Wood,  and 
been  distinctly  disapproved  of  by  Lords  Brougham  and  Cranworth,  upon 
reasonings,  to  say  the  least,  of  the  greatest  weight  and  cogency. 


[*07]  *CH  AFTER   V  I. 

OF   AGENCY. 

§  146.  The  cases  which  arise  where  the  contract  is  made  by  agents 
require  consideration,  as  sometimes  affording  an  apparent  exception  to 
the  rule  that  parties  to  the  contract  only  can  be  parties  to  the  suit. 

§  147.  Where  the  agents  contract  ostensibly  as  such,  and  in  the 
names  of  their  principals,  little  diflBculty  can  occur.  The  principals  here 
are  the  proper  parties  to  sue  and  be  sued,  and  it  is,  in  the  absence  of 
special  circumstances,  improper  to  make  such  an  agent  a  party  to  the 
suit.(fl) 

§  148.  Where,  on  the  other  hand,  the  agents  appear  on  the  face  of 
the  agreement  as  principals,  the  case  is  different.  The  principle  by 
which  these  cases  are  regulated  is  laid  down  with  great  clearness  by 
Lord  Wcnsleydale,  in  Higgins  v.  Senior.(6)  "  There  is  no  doubt,"  said 
his  lordship,  "  that  where  such  an  agreement  is  made,  it  is  competent 
to  show  that  one  or  both  of  the  contracting  parties  were  agents  for  other 
persons,  and  acted  as  such  agents  in  making  the  contract,  so  as  to  give 
the  benefit  of  the  contract  on  the  one  hand  to,  and  charge  with  liability 
on  the  other,  the  unnamed  principals, — and  this,  whether  the  agreement 
be  or  be  not  required  to  be  in  writing  by  the  Statute  of  Frauds  :  and 
r  *«Q  1  *^^^^  evidence  in  no  way  contradicts  *the  written  agreement.  It 
L  -I  does  not  deny  that  it  is  binding  on  those  whom,  on  the  face  of  it, 
it  purports  to  bind ;  but  shows  that  it  also  binds  another,  by  reason  that 
the  act  of  the  agent,  in  signing  the  agreement  in  pursuance  of  his  autho- 
rity, is  in  law  the  act  of  the  principal.  But,  on  the  other  hand,  to  allow 
evidence  to  be  given  that  the  party  who  appears  on  the  face  of  the  in- 
strument to  be  personally  a  contracting  party,  is  not  such,  would  be  to 
allow  parol  evidence  to  contradict  the  written  agreement;  which  cannot 
be  done."  The  Statute  of  Frauds,  as  we  shall  subsequently  see,  does 
not  require  that  the  authority  of  the  agent  should  be  in  writing  where 
the  agreement  is  required  to  be  so. 

§  149.  The  proposition  at  which  we  have  thus  arrived,  that  a  person 
appearing  as  principal  ma3^yet  have  contracted  as  agent  for  another,  who 
may  when  disclosed  sue  or  be  sued  as  principal,  is  to  be  qualified  by  all 
those  considerations  as  to  the  reliance  of  one  party  on  the  personal  quali- 
ties of  the  other,  which  have  been  referred  to  in  considering  how  far 
the  benefit  of  a  contract  is  assignable  in  equity.(c)  Thus  it  appears  clear 

(a)  King  of  Spain  v.  De  Machado,  4  Russ.  225;  Smith  v.  Clarke,  12  Ves.  4:11, 
484. 

(6)  8  M.  &  W.  844.  (c)  See  ante,  §  126. 


AGENCY.  71 

that  if  A.  contract  with  B.  for  the  performance  of  anythintr  in  which  B. 
may  be  reasonably  taken  to  have  relied  on  A.'s  personal  character  or 
qualities,  A.  cannot  declare  himself  the  agent  of  C.  so  as  to  place  him 
in  the  same  position  as  regards  B.  that  A.  held ;  and  again,  if  A.  were 
to  contract  with  B.  for  the  purchase  from  him  of  his  estate,  B.  could  not 
afterwards  declare  himself  the  agent  for  C.  ;  for  C,  not  having  the 
estate,  could  not  perform  the  contract.  And  it  may,  it  seems,  be 
laid  down  that  in  no  case  can  a  contracting  party  declare  himself  the 
agent  of  an  unnamed  principal,  except  where  the  contract,  if  really 
made  by  the  contracting  party,  might  have  been  assigned  by  him  to  the 
party  suing  as  principal. 

§  150.  In  these  cases  the  agent  is  not  a  necessary  party  *to  j-  ^p^  , 
the  suit,(J)  unless  the  agency  be  not  proved,  or  there  be  special  L  -I 
circumstances  which  may  render  it  proper  to  make  him  a  defendant;  as 
where  the  agent  claimed  to  have  entered  into  the  contract  for  his  own 
benefit. (i?) 

§  151.  The  question  may  sometimes  arise,  whether  a  party  has,  on 
the  construction  of  the  contract,  entered  into  it  as  principal  or  as  agent. 
The  commissioners  of  woods  and  forests  were  by  statute  authorized  to 
enter  into  contracts,  but  the  estate  remained  in  the  crown  :  on  a  con- 
tract entered  into  by  them  under  this  authority,  it  was  held  on  demurrer 
that  they  could  not  be  sued  for  specific  performance,  but  that  the  con- 
tract must  be  enforced  in  the  ordinary  way  in  the  case  of  estates  vested 
in  the  crown. (/) 

§  152.  In  the  case  of  a  contract  by  an  agent  as  a  principal,  the  agent 
may  at  law  sue  in  his  own  name,  without  in  any  way  joining  the  real 
principal  :  in  equity,  however,  it  appears  clear  that  a  suit  cannot  be 
maintained  by  the  agent,  unless  his  real  principal  be  in  some  shape  a 
party  to  the  suit.((7) 

§  153.  The  principle  already  stated(7()  that  a  person  appearing  on  a 
contract  as  principal,  though  really  an  agent,  is  yet  liable  on  the  contract 
as  principal,  applies  in  cases  of  specific  performance  in  equity  as  well  as 
of  damages  at  law-^i")  In  a  recent  case(Z:)  where  the  contract  was  in  the 
name  of  the  agent,  who  contended  that,  being  merely  such,  the  bill 
should  be  dismissed  as  against  him,  Lord  J.  Turner,  then  vice-chancel- 
lor, said  that  ''the  signature  of  the  agreement  was  sufficient  to  subject 
him  to  the  liability  of  performing  it."  It  would  appear  on  principle, 
that  if,  at  the  *time  the  contract  was  signed,  both  A.  and  B.  r:(:YA-i 
understood  that  A.  was  acting  merely  as  agent  for  C,  and  B.  L  J 
were  afterwards  to  sue  A.  for  specific  performance  as  principal,  A.  might 
allege  the  understanding  between  himself  and  B.  at  the  time,  and  give 
parol  evidence  of  it,  and  that,  if  the  allegation  was  proved,  it  might  fur- 

(</)  Kingley  v.  Youug,  Dan.  Pr.  188. 

(e)  Taylor  v.  Salmon,  4  My.  k  Cr.  134.  See  also  Marshall  v.  Sladden,  7  Ha. 
428;  Lees  v.  Nuttall,  1  R.  &  My.  53;  Nelthorpe  v.  Holgate,  1  Coll.  203:  ante, 
§83. 

(/)  Nurse  v.  Lord  Seymour,  13  Beav.  254. 

(ff)  Per  Lord  Lvndhurst  in  Small  v.  Attwood,  You.  457.  (h)  Ante,  ^  148. 

(i)  Jones  v.  LiUledale,  6  A.  &  E.  48G  ;  Magee  v.  Atkinson.  2  M.  &  W.  440. 

(A-)  Chad  wick  v.  Maden,  9  Ha.  191. 


72       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

nish  a  valid  defence  ;  though  the  circumstances  supposed  would  of  course 
furnish  no  defence  at  law,(?)  unless  by  way  of  equitable  plea.  And  in 
many  cases  it  is  obvious  that  a  suit  for  specific  performance  against  an 
agent  alone  would  fail,  from  the  incapacity  of  the  agent  to  perform  it.(«?) 


PART    III. 
OF  THE  DEFENCES  TO  THE  SUIT. 


[*71]  *CHAPTEE    L 

OP  THE  INCAPACITY  TO  CONTRACT. 

§  154.  The  incapacity  to  contract,  of  either  of  the  parties  to  an  agree- 
ment, furnishes  ground  on  which  that  party  may  resist  the  specific  per- 
formance of  the  contract ;  and  on  the  principle  of  mutuality,  hereafter 
to  be  considered,  it  may  also  furnish  a  defence  to  the  other  party,  though 
himself  perfectly  competent.  The  incapacity  to  contract,  and  the  inca- 
pacity to  execute  a  contract,  are  of  com-se  different  questions :  the  one 
must  be  judged  of  at  the  time  of  the  contract,  the  other  when  its  per- 
formance is  sought. 

§  155.  The  question  as  to  the  capacity  of  persons  to  contract,  as  raised 
in  suits  for  specific  performance,  being  for  the  most  part  identical  with 
the  question  as  discussed  at  common  law  or  elsewhere,  and  having  no 
peculiar  relation  to  the  jurisdiction  of  equity  in  specific  performance,  I 
propose  only  to  refer  to  a  few  points  of  practical  importance  which  may 
arise  in  suits  of  this  nature. 

§  156.  The  peculiar  doctrines  of  equity  with  relation  to  married  women 
make  it  necessary  to  allude  to  their  capacity  to  contract.  The  principle 
on  which  the  court  proceeds  is,  that  if  a  married  lady  have  not  separate 
property,  she  cannot  contract  at  all ;  and  if  she  have,  she  can  contract, 
but  only  in  respect  of  that,  and  the  remedy  is  only  against  it,  represented 
r  *7o  -I  ^y  *^^^  trustees,  and  not  in  personam  *against  her.^a^  "  A  feme 
L  "^ -•  covert,"  said  Lord  Cottenham,(/>)  "is  not  competent  to  enter 
into  contracts  so  as  to  give  a  personal  remedy  against  her.  Although 
she  may  become  entitled  to  property  for  her  separate  use,  she  is  no  more 
capable  of  contracting  than  before;  a  personal  contract  would  be  within 
the  incapacity  under  which  a  feme  covert  labours." 

[1)  Higgins  V.  Senior,  8  M.  &  W.  834.  (m)  See  post,  §  658  et  seq. 

(a)  Francis  v.  Wigzell,  1  Mad.  258;  Aylett  v.  Ashton,  1  My.  &  Cr.  105.  See 
also  Humphreys  v.  Ilollis,  Jac.  73.  The  case  of  Vansittart  v.  Vansittart,  4  K.  & 
J.  (J2,  (lecidc'S  that  the  power  of  a  wife  to  contract  with  her  husband  is  not  con- 
fined to  her  separate  property,  but  extends  to  other  matters  as  to  which  she  can 
be  regarded  for  the  purposes  of  the  contract  as  a  feme  sole:  so  that  a  wife  suing 
her  husband  for  divorce  on  the  ground  of  adultery  and  cruelty  may  contract  with 
him  to  abandon  her  suit.  \b)   1  My.  &  Cr.  Ill,  112. 


INCAPACITY  TO  CONTRACT.  73 

§  157.  In  one  case,(f')  a  married  lady  possessed  of  separate  estate,  and 
living  separate  from  her  husband,  verbally  contracted  to  take  a  leasehold 
house  for  a  term  :  the  agreement  was  reduced  into  writing,  and  signed 
by  the  lessor's  agent,  and  handed  to  the  lady;  she  retained  it,  but  with-' 
out  executing  it,  or  any  counterpart  of  it,  but  in  letters  written  by  her 
referred  to  it  as  an  agreement,  and  she  entered  into  possession  :  in  a  suit 
by  the  lessor  against  her  and  her  trustees  to  enforce  payment  of  rent,  as 
a  charge  on  her  separate  estate,  the  vice-chancellor  held  that  she  would 
have  been  bound,  if  she  had  been  a  feme  sole,  and  that,  being  married, 
she  was  bound  to  the  extent  of  her  separate  estate. 

§  158.  If  a  married  woman  has  a  power  to  be  exercised  in  a  specific 
way,  and  she  affects  to  contract  by  an  exercise  of  the  power,  but  without 
the  required  formalities,  there  will,  it  seems,  be  no  decree  against  her; 
for,  except  under  these  formalities,  she  has  no  power  to  contract,  and 
the  paper  signed  by  her  is  as  void  as  an  agreement  signed  by  a  married 
woman. ((Z) 

§  159.  In  suits  for  the  enforcement  of  contracts  against  the  separate 
estates  of  married  ladies,  the  proper  parties  are  the  lady  herself,  her 
husband,  and  the  trustees  of  the  separate  property. M 

*§  160.  It  is  to  be  added  that,  with  regard  to  real  estate,  a  ^  ^_q  -i 
married  lady  may,  under  the  Act  for  the  Abolition  of  Fines  and  ^  J 
Recoveries, (/)  not  only  dispose  of  the  land,  but  contract  respecting  it, 
if  not  so  as  to  render  herself  liable  to  damages,  yet  so  as  to  bind  her 
estate  of  inheritance. (r/) 

§  161.  Lunatics  are  under  an  incapacity  to  contract,  except  during 
lucid  intervals,  during  which  times  contracts  entered  into  by  them  are 
as  binding  as  if  made  by  a  person  of  perfectly  sound  mind. (/A  Where 
a  person  who  has  entered  into  a  contract  is  subsequently  found  lunatic 
from  a  date  prior  to  the  contract,  it  is  competent  for  the  other  party  to 
file  his  bill  for  specific  performance,  and  obtain  an  issue  to  inquire  whe- 
ther the  defendant  was  a  lunatic  at  the  time  of  the  contract,  and,  if  so, 
whether  he  had  lucid  intervals,  and  whether  the  contract  was  executed 
during  a  lucid  interval  :(<)  or  he  may  ask  in  the  alternative,  to  have  the 
contract  either  performed  or  discharged  ;  and  in  the  latter  case  the  court 
will  allow  him,  if  vendor,  to  retain  out  of  the  deposit  his  costs,  charges, 
and  expenses. (/.:)  In  judging  of  the  insanity  of  a  party,  courts  of  equity 
are  governed  by  the  same  principles  as  courts  of  law.(/) 

(r)  Gaston  v.  Frnnkum,  2  De.  G.  &  Sm.  561. 

(d)  Martin  v.  Mitchell,  2  J.  &  W.  413,  434. 

(e)  See  Hulme  v.  Tenant,  1  Bro.  C.  C.  IG ;  Murray  v.  Barlee,  3  Mj.  &  K.  209. 
(/)  3  &  4  W.  IV.  c.  74. 

(7)  Crofts  V.  Middleton,  25  L.  J.  Ch.  513,  before  L.  J.  J.,  overruling  S.  C.  2  K.  & 
.1.  194. 

(A)  Hall  V.  Warren,  9  Ves.  605.  As  to  the  evidence  required  to  prove  a  lucid 
interval,  see  Attorney-General  v.  Parnther,  3  Bro.  C.  C.  441 ;  E.x  parte  Holyland. 
11  Ves.  10.     See  also  Ray's  Medical  Jurisprudence  and  Insanity,  ch.  14. 

(i)  Hall  v.  Warren,  ubi  sup. 

(k)  Frost  V.  Beavan,  17  Jur.  369.  As  to  setting  aside  a  contract  for  the  lunacy 
of  a  party,  see  Ncill  v.  Morlcy,  9  Ves.  478. 

(/)  Per  Lord  Hardwicke  in  Bennet  v.  Vade,  2  Atkv.  327;  Osmond  v.  Fitzrov,  3 
P.  Wms.  129.     See  post,  ?  239. 


74:       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  162.  The  subsequent  lunacy  of  a  party  to  a  contract  in  nowise 
affects  the  rights  of  the  other  parties  ;(m)  and  the  difficulties  which  for- 
merly stood  in  the  way  of  their  remedies  are  now  removed  by  the  Trustee 
Act,  1850,  and  the  Lunacy  llegulation  Act,  1853,  s.  122. 

*§  168.  In  addition  to  the  legal  incapacities  to  contract,  courts 
L  '  J  of  equity  consider  trustees,  guardians,  agents,  and  otber  persons 
standing  in  a  confidential  relation  to  others  to  be  incapable  of  contract- 
ing for  the  purchase  of  the  property  entrusted  to  them  in  behalf  of  the 
persons  to  whom  they  stand  thus  confidentially  related,  and,  under  many 
circumstances,  of  contracting  with  such  persons;  and  this  incapacity 
may,  of  course,  be  urged  in  a  suit  for  specific  performance.  But,  inas- 
much as  it  depends  on  the  general  doctrines  of  the  court  with  regard  to 
each  of  these  particular  relations, — and  questions  of  this  sort  are  more 
often  agitated  in  suits  to  set  aside  the  impugned  transaction,  than  in 
proceedings  for  specific  performance, — it  does  not  appear  necessary  to  do 
more  here  than  to  allude  to  the  subject  generally. (_??) 


[*75]  *CH  AFTER    II. 

OF   THE    NON-CONCLUSION    OF    THE    CONTRACT. 

§  164.  No  proceedings  in  specific  performance  can  of  course  be  had, 
unless  it  be  shown  that  a  contract  has  actually  been  concluded  :  if  the 
arrangement  come  to  was  in  its  nature  merely  honorary,  or  if  the  matter 
still  rests  in  treaty,  no  specific  performance  can  be  granted. 

§  165.  Where  the  contract  is  embodied  in  a  formal  document  simulta- 
neously entered  into  by  both  parties,  little  difficulty  can  occur  as  to 
whether  the  contract  was  concluded.  But  this  question  frequently  arises 
where  a  contract  is  alleged  to  have  been  constituted  by  the  negotiations 
of  the  parties.  If  it  be  only  doubtful  whether  the  contract  was  concluded 
or  still  remained  open,  the  court  will  refuse  specific  performance,  and  leave 
the  parties  to  their  rights  at  law.(«) 

§  166.  A  binding  contract,  enforceable  in  equity,  may  be  constituted 
by  the  proposal  of  one  party  and  the  acceptance  of  the  other. (6)  But  as 
the  proposal  has  no  validity  without  the  acceptance,  a  memorandum  of 
offer  differs  essentially  from  a  memorandum  of  agreement.  "In  the  case 
of  an  offer,  no  doubt,  the  party  signing  it  may  at  any  time  before  accept- 
P  ^_P  .,  ance  retract;  but  if  it  be  an  agreement,  ^though  signed  by  one 
L  J  party  alone,  he  cannot  retract  at  his  pleasure,  but  all  he  can  do 
is  to  call  upon  the  other  party  to  sign  or  rescind  the  agreement.  A 
memorandum  of  agreement  supposes  that  the  two  parties  have  verbally 

(to)  Owen  V.  Davies,  1  Ves.  Sen.  82.  («)  As  to  Infancy,  see  post,  §  287. 

(a)  Iluddlestou  v.  Briscoe,  11  Ves.  583,  591  ;  Stratford  v.  Bosworth,  2  V.  &  B. 
341. 

(6)  The  acceptance  mnst  be  by  the  other  party.  An  offer  by  A.  to  B.  and  ac- 
ceptance by  C.  constitutes  no  contract.     Mcyneli  v.  Surtces,  3  Sra.  &  Gif.  101, 117. 


NO  N -CONCLUSION    OF    THE    CONTRACT.  75 

made  an  actual  contract  with  each  other;  and  when  the  terms  of  such 
contract  are  reduced  into  writing  and  signed,  that  is  sufficient  to  bind 
the  party  signing  :  but  if  the  memorandum  is  of  an  ofier  only,  that 
assumes  that  tliere  has  been  no  actual  contract  between  the  parties. "(c) 

§  167.  In  order  that  an  accejitance  may  be  operative,  it  must  be  un- 
equivocal, unconditional,  and  without  variance  of  any  sort  between  it  and 
the  proposal,  and  it  must  be  communicated  to  the  other  party  without 
unreasonable  delay. 

§  168.  The  proposition  that  the  acceptance  must  be  unequivocal,  un- 
conditional, and  without  variance,  is  supported  and  illustrated  by  a  great 
variety  of  dcci.sions.  In  the  case  of  Kennedy  v.  Lec,((;/)  the  subject  was 
much  discussed  :  it  was  there  unsuccessfully  argued  that  the  acceptance 
introduced  a  term  respecting  the  goodwill  of  a  business  not  included  in 
the  proposal. 

§  169.  The  unequivocal  character  of  the  acceptance  that  is  requisite 
is  well  illustrated  by  a  case(^)  in  which  A.  made  an  offer  to  B.,  by  letter, 
to  sell  a  lot  of  land  ;  B.  filed  a  bill  against  A.,  alleging  an  agreement  in 
writing  for  the  sale  of  this  estate,  and  the  answer  offered  to  sell  the  estate  ; 
the  decree  was  in  the  alternative  for  a  conveyance  on  the  payment  of  the 
purchase-money  into  the  bank,  or,  in  default,  for  the  dismissal  of  the  bill : 
the  money  was  paid.  The  question  arose  between  the  heirs  and  devisees 
of  B.,  as  *to  the  time  when  tlie  contract  became  binding :  it  was  n  ..--  -i 
held  that  the  bill  did  not  amount  to  an  acceptance  so  as  to  bind  •-  -■ 
B. ;  for  he,  as  plaintiff,  might  have  dismissed  his  bill  :  the  decree  did 
not,  for  it  left  an  election  to  the  plaintiff;  but  the  payment  of  the  money 
into  the  bank  did,  for  that  was  unequivocal.  And  in  a  recent  case,(y'j 
•where  the  plaintiff  had  made  an  offer  to  take  a  farm,  and  had  referred  to 
certain  persons  as  to  his  capabilities  and  capital,  and  in  consequence  of 
this  offer  the  agents  of  the  proposed  lessor  had,  by  his  direction,  pre- 
pared and  sent  to  the  proposed  lessee  a  lease  which  they  considered  to  be 
in  pursuance  of  the  proposal,  Kindersley,  V.  C,  held  this  not  to  be  an 
acceptance,  on  the  ground  that  the  act  was  ambiguous  and  conditional: — 
ambiguous,  because  the  lease  might  have  been  sent  in  order  to  save  time, 
and  without  any  intention  of  departing  from  the  right  of  accepting  or 
refusing  the  offer  of  the  plaintiff',  according  to  the  result  of  his  commu- 
nication with  the  referees  ;  and  conditional,  because  the  sending  the  draft 
lease,  if  an  acceptance  at  all,  was  an  acceptance  upon  condition  that  the 
defendant  accepted  the  draft  lease.  The  case  of  Thomas  v.  Blackman,((7) 
before  Knight  Bruce,  V.  C,  may  also  be  referred  to  as  illustrating  this 
doctrine.  Here  there  had  been  a  long  correspondence,  and  the  vice- 
chancellor  held  that  there  never  had  been,  in  any  part  of  it,  a  clear 

(c)  Per  Kinderslo}',  V.  C,  in  Warner  v.  Willington,  3  Drew,  531.  .See  also  ^lev- 
nell  V.  Surtees,  1  Jur.  N.  S.'T37;  Ilorsfall  v.  Garuett,  Week.  Rep.  1857-1858,  387. 
(Wood,  V.  C.)  The  distinction  is  the  same  between  a  pollicitatio  and  a  contract 
in  the  Roman  law.     See  Pothier,  Traite  des  Oblig.  par.  1,  chap.  1,  s.  1.  art.  1.  §  2. 

{d)  3  Mer.  441  ;  Thornbury  v.  Bevill,  1  Y.  &  C.  C.  C.  554. 

(c)  Gaskarth  v.  Lord  Lowther,  12  Ves.  107. 

(/)  Warner  v.  Willington,  3  Drew,  523.  See  also  Horsfall  v.  Garnett.  Week. 
Rep.  1857-1858,  387,  (Wood,  V.  C.) 

(g)  1  Coll.  C.  C.  301. 


76       FRY    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

accession  on  both  sides  to  one  and  the  same  set  of  terms ;  and  accord- 
ingly he  decreed  the  dismissal  of  the  bill,  unless  the  plaintiff  accepted 
the  terms  of  the  defendant's  original  offer,  which  the  plaintiff  acceded 
to. 

§  1 70.  Where  there  is  any  variance  between  the  terms  of  the  propo- 
sal and  those  of  the  acceptance,  no  contract  arises ;  as  where  A.  offered 
to  purchase  a  house  on  certain  terms,  possession  to  be  given  on  or  before 
r  ^"o  -I  t^i6  25th  of  *July,  and  B.  agreed  to  the  terms,  and  said  he  would 
L         -I  give  possession  on  the  1st  of  August,  (/i) 

§  171.  And  where  A.  made  the  promoters  of  a  railway  an  offer  of  a 
way-leave  for  the  purpose  of  their  railway,  which  was  one  for  mineral 
traffic  only,  and  it  was  subsequently  accepted,  but  for  the  purpose  of  con- 
structing a  public  railway  for  general  traffic,  this  was  held  to  be  such  a 
variation  in  the  subject-matter  as  prevented  any  contract  from  arising. (?) 

§  172.  The  introduction  of  a  term  in  the  acceptance,  which  is  not  in 
the  proposal,  is  a  variance  which  prevents  their  constituting  a  contract. 
Therefore,  where  the  defendant  offered  certain  terms  for  a  lease,  and  the 
plaintiff  accepted  the  terms  and  offered  an  under-lease,  there  was  held  to 
be  no  contract. (A-)  So  where  a  condition  was  introduced  into  the  accept- 
ance, it  prevented  its  operating  as  a  contract. (/)  In  another  case,  where 
the  plaintiff  proposed  an  agreement  to  the  defendant,  stipulating,  amongst 
other  things,  that  a  lease  should  contain  all  the  covenants  in  the  superior 
lease,  and  the  defendant  signed  the  agreement  tendered,  but  with  the 
qualification  that  there  was  nothing  unusual  in  such  superior  lease ;  a 
draft  of  the  proposed  lease  was  then  submitted  to  the  defendant,  who 
made  some  alterations,  and  requested  the  plaintiff's  solicitors  to  adopt 
them  at  once,  or  to  refuse  the  lease ;  the  solicitors  sent  back  the  draft, 
acceding  to  all  the  alterations  except  one  as  to  assigning  without  license  : 
it  was  held  that  at  this  stage  there  was  no  contract,  and  that  the  proposed 
lessee  could  determine  the  treaty. (jn)  And  where  a  proposal  was  made 
to  take  an  allotment  of  railway  shares,  and  a  letter  was  returned,  accept- 
ing the  offer,  but  headed  "  not  transferable,"  the  new  term  introduced 
r  ^-o  n  ^y  these  words  prevented  *the  proposal  and  acceptance  from  con- 
L         J  stituting  a  con  tract,  (iz) 

§  173.  But  where  the  proposal  leaves  a  term  to  be  decided  by  the  ac- 
ceptance, the  decision  of  this  will  not,  of  course,  amount  to  the  introduc- 
tion of  a  new  term ;  as,  e.  g.,  where  the  proposal  has  reference  to  such  a 
day  as  shall  be  named  by  the  party  to  whom  it  is  made,  and  he,  in  accept- 
ing, names  the  day.(o)  And  a  contract  by  proposal  and  acceptance  may, 
like  any  other,  leave  the  price  or  any  other  term  to  be  ascertained  in  a 
way  agreed  on.(p) 

§  174.  So,  again,  it  seems  clear  that  a  variation  which  is  purely  nuga- 

(h)  Routlcdge  V.  Grant,  4  Bing:.  G53. 

(i)  Meynell  v.  Surtees,  .3  Sm.  &  (J if.  101,  affirmed  by  Lord  Chancellor,  1  Jur.  N. 
S.  737,  sanctioning^  this  argument. 

(/(■)  Holland  V.  Eyre,  2  S.  &  S.  194.  (/)  Hall  v.  Hall,  12  Beav.  414. 

(m)  Lucas  v.  Jame.s,  7  Hare,  410.  (w)  Duke  v.  Andrews,  2  Exch.  290. 

(o)  Boys  V.  Ayerst,  6  Mad.  316. 
(p)  Walker  v.  Eastern  Counties  Railway  Company,  G  Ha.  .594. 


NON-CONCLUSION    OF    THE    CONTRACT.  77 

tory  will  not  affect  the  contract  ;(y)  nor  will  the  introduction,  into  the 
acceptance,  of  what  is  not  matter  of  contract;  as,  e.  g.,  the  words  "we 
hope  to  give  you  possession  at  lialf-quarter  day,"  which  were  held  to  be 
a  mere  expression  of  hope,  and  so  not  to  introduce  a  new  term  into  the 
acceptance. (r] 

§  175.  Nor  will  the  court  consider  a  new  term  to  be  introduced  by  the 
circumstance  that  the  acceptance  proceeds  to  treat  of  the  way  in  which 
the  contract  is  to  be  carried  out ;  as,  for  instance,  by  referring  to  a  formal 
agreement  that  was  to  be  drawn. (.s) 

§  176.  The  acceptance,  moreover,  must  be  without  unreasonable  delay. 
"When  I  offer  anything  to  a  person,"  said  Lord  Cranworth,(<:)  "what  I 
mean  is,  I  will  do  that  if  you  choose  to  assent  to  it;  meaning,  although 
it  is  not  so  expressed,  if  you  choose  to  assent  to  it  in  a  reasonable  time." 
This  principle  is  illustrated  by  the  case  of  Williams  v.  Williams,(w)  of 
which  the  circumstances  were,  that  in  *1827,  A.  wrote  to  B.  that  ^  ^^^  -. 
he  had  credited  B.'s  account  with  £220  in  consideration  of  an  L  J 
agreement  by  B.  to  convey  certain  houses.  The  abstract  was  delivered; 
but  there  was  no  acceptance  in  writing  by  B.,  who,  however,  five  years 
afterwards,  filed  his  bill  against  A.  for  specific  performance.  It  appeared 
that  in  1827,  A.  had  abandoned  the  treaty,  and  that  in  1829  both  parties 
considered  it  as  broken  off,  but  nevertheless,  that  B.  had  in  the  meantime 
had  the  benefit  of  the  credit  of  £220.  The  court  dismissed  the  bill,  on 
the  ground  that  an  offer  to  convert  it  into  a  contract  must  be  accepted 
and  acted  on  within  a  reasonable  space  of  time. 

§  177.  The  proposal,  before  conversion  into  a  contract  by  acceptance, 
may  be  determined  in  two  ways, — by  the  withdrawal  of  the  person  mak- 
ing the  offer,  or  the  refusal  of  the  person  to  whom  it  is  made.  First, 
it  may  be  determined  by  the  proposer  by  withdrawal  before  aecept- 
ance,(t')  because  the  proposal  by  itself  creates  no  mutuality  and  no  obli- 
gation ;  so  that  where  a  person  made  offers  for  a  farm,  which  the  owner 
intended  to  accept,  but  did  not  do  so  bindingly,  and  the  proposer  subse- 
quently withdrew  his  offer,  it  was  held  that  he  could  do  so,  and  that  there 
was  no  contract.  (?i-) 

§  178.  This  right  to  retract  is  not  affected  by  the  fact  that  the  offer 
itself  specifies  a  time  within  which  the  acceptance  is  to  be  made;  so  that 
where  A.  offered  to  sell  a  house  to  B.,  and  gave  B.  six  weeks  for  a  defi 
nite  answer,  A.  was  held  entitled  to  withdraw  his  offer  before  the  expira 
tion  of  that  period. (:r) 

§  179.  In  the  second  place,  the  refusal  of  the  person  to  whom  the 


n 


Lucas  T.  James,  7  Ha.  410,  424;  cf.  post,  ^  419. 

Clive  V.  Beaumont,  1  De  G.  &  Sm.  397.     See  also  Johnson  v.  Kinor,  2  Bin"- 
270. 

(«)  Gibbins  v.  North-eastern  Metropolitan  District  Asylum,  11  Beav.  1 :  Skin- 
ner V.  M'Douall,  2  De  G.  &  Sm.  265  ;  and  see  post,  §  344. 

(t)  In  Meynell  v.  Surtees,  1  Jur.  N.  S.  737.  (u)   17  Beav.  213. 

(v)  Thornbury  v.  Bevill,  1  Y.  &  C.  C.  C.  554.     See  also  Meynell  v.  Surtees,  1 
Jur.  N.  S.  737,  (L.  C.) 

(w)  Warner  v.  Willington,  3  Drew,  523. 

(x)  Routledge  v.  Grant,  4  Bing.  G53  ;  Cooke  x.  Oxley,  3  T.  R.  653. 

November,  1858. — 6 


78   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

proposal  is  made  puts  au  end  to  it;  and  it  will  not  be  revived  by  a  sub- 
sequent tender  of  acceptance. (y) 

*§  180.  As  it  is  competent  to  the  proposer  to  recall  his  pro- 
L  -I  posal  at  any  time  before  acceptance,  so  also  he  may  vary  it  by 
the  introduction  of  any  new  term  into  it.  And  as  the  person  to  whom 
the  proposal  is  made  may,  of  course,  offer  to  accept  the  terms  proposed, 
with  any  variation  or  addition,  it  follows  that  each  party  may  continue 
to  add  fresh  stipulations  to  the  proposed  contract,  until  the  terms  pro- 
posed by  one  side  have  been  definitely  accepted  by  the  other.^z)  There- 
fore where  the  owner  of  an  estate  made  a  proposal  requiring,  amongst 
other  things,  the  payment  of  £1,500  by  way  of  deposit,  the  purchaser 
objected  to  it,  and  before  he  accepted  the  terms,  the  owner  required  it 
to  be  paid  and  the  agreement  to  be  signed  before  a  given  day,  or  the 
treaty  to  be  at  an  end,  and  this  was  not  complied  with,  but  a  subsequent 
offer  was  made  to  sign  the  agreement  and  pay  the  deposit;  the  court 
held  that  there  was  no  contract.(«) 

§  181.  It  being  sufficient  to  satisfy  the  Statute  of  Frauds  that  the 
writing  be  signed  by  the  party  to  be  charged, (6)  it  follows  that  a  proposal 
in  writing,  where  simple  assent  is  required  and  the  acceptance  is  not  to 
supply  any  term,(c)  may  be  so  accepted  as  to  constitute  a  contract  bind- 
ing on  the  proposer  by  other  means  than  a  written  acceptance. 

§  182.  (1)  Thus  it  seems  that  an  acceptance  by  parol  is  sufficient,  as 
was  recently  held  by  Vice-Chancellor  Kindersley,(rf)  in  a  case  in  which 
he  observed  on  the  want  of  previous  authority  distinctly  to  establish  the 
point.  In  Coleman  v.  Upcot.(e)  where  there  was  first  an  acceptance  by 
the  plaintiff  by  parol,  and  subsequently  a  subscription  by  the  plaintiff', 
the  parol  acceptance  appears  to  be  the  ground  of  the  decision  that  there 
was  a  binding  contract. 

*§  183.  (2)  So,  generally  speaking,  where  the  proposal  comes 
L  "'J  from  the  defendant,  the  acceptance  need  not  be  proved  by  the 
plaintiff,  the  filing  of  the  bill  being ^j^-i'ma  facie  evidence  of  its  accept- 
ance, liable  to  be  repelled  by  proof,  on  the  part  of  the  defendant,  of  the 
proposal  having  been  previously  determined. (/) 

§  184.  (3)  On  a  like  principle  the  acceptance  of  a  proposal  may  be  by 
acts,  so  as  to  bind  the  person  making  the  proposal.  Thus,  for  example, 
where  an  uncle  of  a  young  man  sent  proposals  to  the  friends  of  the  lady, 
to  which  no  answer  was  returned,  but  the  young  man  was  admitted  as  a 
suitor,  and  the  marriage  ensued,  it  was  held  by  Lord  Nottingham  to 
amount  to  a  complete  agreement,  which  ought  to  be  performed  on  all 
sides. (.7)     The  principle  is  also  established  by  the  cases  hereafter  cousi- 

(y)  Hyde  v.  Wrench,  3  Beav.  334.  The  decision  in  Hodgson  v.  Hutchenson,  5 
Vin.  Abr.  522,  pi.  34,  which  inferred  an  acceptance  from  acts  after  an  explicit  re- 
fusal, cannot  probably  be  maintained  on  this  point. 

{z)  Honeyman  v.  Marryat,  21  Beav.  14,  affirmed  in  D.P.,  G  Ho.  Lords,  112. 

(a)  S.  C.  (6)  See  post,  I  346. 

(c)  Boys  v.  Ayerst,  6  Mad.  316. 

{d)  Warner  v.  Willington,  3  Drew,  523.  See  accordingly,  Smith  v.  Neale,  26  B., 
N.  S.  67,  88. 

(e)  5  Vin.  Abr.  527,  pi.  17  ;  cf.  Palmer  v.  Scott,  1  R.  &  My.  391. 

(/■)  Boys  V.  Ayerst,  6  Mad.  31G.  {g)  Parker  v.  Serjeant,  Finch,  146. 


NON-COXCLUSIOX    OF    THE    CONTRACT.  79 

dered,  of  representations  made  by  one  person,  and  acts  done  by  another 
on  the  faith  of  those  representations. (A) 

§  185.  In  contracts  constituted  by  proposal  and  acceptance,  it  is  obvi- 
ous that  the  question  may  arise,  at  what  time  tlie  treaty  was  converted 
into  a  contract.  The  contract  is  perfected  by  the  posting  of  a  letter 
declaring  the  acceptance,  because  thereby  the  acceptor  has  done  all  that 
is  requisite  on  his  part,  and  is  not  answerable  for  the  casualties  of  the 
post-office. (A  Hence  it  follows  that  the  contract  dates  from  the  posting 
and  not  from  the  receipt  of  the  letter  of  acceptance. f/i-)  In  case  of  there 
being  an  agent  for  the  proposer,  the  communication  of  the  acceptance 
to  him  completes  the  contract,  though  the  agent  may  fail  to  make  known 
the  acceptance  to  his  principal  (/) 

§  186.  One  common  form  of  agreement  in  the  nature  of  *a  p^no-i 
proposal  and  acceptance  is  where  there  is  on  the  one  part  an  L  '"^  J 
agreement  to  do  a  certain  act  on  demand,  and  on  the  other  part  that 
demand  has  been  made. (vi'j 

§  187.  Another  species  of  contract  by  proposal  and  acceptance  is  con- 
stituted by  a  promise  or  representation  made  by  one  person,  and  acts 
done  by  another  person  on  the  faith  of  such  promise  or  representation. 
"  A  representation,"  said  Lord  Cottenham,(?i)  "  made  by  one  party  for 
the  purpose  of  influencing  the  conduct  of  the  other  party,  and  acted  ou 
by  him,  will  in  general  be  sufficient  to  entitle  him  to  the  assistance  of 
this  court  for  the  purpose  of  realizing  such  representation." 

§  188.  Representations  are  of  two  kinds  :  the  one,  of  things  past  or 
present,  the  other,  of  things  future  :  the  one,  of  things  done  or  existing, 
the  other,  of  things  to  be  done.  With  regard  to  the  former  class,  when- 
ever a  representation  as  to  something  alleged  as  a  then  existing  fact, 
which  representation  is  not  true,  has  been  made  by  a  person  who  knows 
it  to  be  untrue,  or  does  not  know  it  to  be  true,(o)  to  another  person  in 
order  to  induce  him  to  an  act,  and  that  act  has  been  thereupon  done  by 
the  second  person  to  his  prejudice,  the  person  making  the  representation 
will  not  be  allowed  either  in  equity  or  at  law  afterwards  to  turn  round 
and  deny  the  alleged  fact :  "  It  shall  be,"  said  Lord  Mansfield, (p)  "  as 
represented  to  be."  Thus  for  example,  where  one  person  represented  to 
another,  on  a  treaty  for  marriage  with  his  daughter,  that  a  certain  demand 
was  not  existing,  he  was  afterwards  restrained  by  the  court  from  proceeding 
to  recover  the  demand  '.(^q"^  and  where,  in  a  recent  case,  a  father  repre- 

(h)  See  post,  §  187  et  seq.  See  also  Hodgson  v.  Hutchenson,  5  Yin.  Abr.  522. 
pi.  34,  where  acts  were  held  to  amount  to  an  acceptance  after  an  explicit  refusal  : 
as  to  which,  see  ante,  §  179. 

(t)  Dunlop  V.  Higgins,  1  Ho.  Lords,  381  ;  Duncan  v.  Topham,8  C.  B.  225  :  Adams 
V.  Lindsell,  1  B.  &  A.  G81 ;  Stocken  v.  Collin,  7  M.  &  W.  515. 

{k)  Potter  V.  Saunders,  G  Ha.  1.  (l)  Wright  v.  Bigg,  15  Beav.  592. 

(m)  Beatson  v.  Nicholson,  6  Jur.  620. 

(?i)  In  Hamraersley  v.  Du  Biel,  12  CI.  &  Fin.  62,  n. ;  cf.  Ayliffe  r.  Tracy,  2  P. 
Wms.  64,  which  shows  that  where  the  act  was  not  done  in  reliance  on  the  repre- 
sentation, no  contract  arises. 

(o)  Per  Sir  Wm.  Grant  in  Ainslie  v.  Medlycott,  9  Yes.  21. 

(p)  In  Montefiori  v.  Montefiori,  1  Wm.  Black.  364. 

(q)  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543.  See  also  Gale  v.  Lindo,  1  Vern. 
475;  Scott  v.  Scott,  1  Cox,  366,  and  at  law.  Montefiori  r.  Montefiori.  1  Wm.  Bl. 
363  ;  Pickard  v.  Scars.  6  A.  469  ;  Gregg  v.  Wells,  10  A.  &  E.  90  :   Freeman  v. 


80       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

r*8n  ^^'^^^^  **^<^  ^  future  husband  of  his  daughter,  that  she  was  en- 
L  J  titled  after  tlie  death  of  her  parents  to  <£'10,000,  and  she  was  in  fact 
only  entitled  to  about  half  that  amount,  the  balance  was  recovered  from 
the  father's  estate. (r)  But  in  these  cases,  the  court  acts  merely  on  the 
principle  of  preventing  fraud,  and  not  at  all  on  contractors)  and  they 
therefore  do  not  properly  come  in  for  discussion  here. 

§  189.  But  with  regard  to  representations  of  something  future,  and 
within  the  power  of  the  party  making  the  statement,  the  case  is  differ- 
ent ;  for  such  a  representation,  made  for  a  particular  purpose  by  one 
person,  and  followed  by  conduct  in  pursuance  of  it  by  the  other,  consti- 
tutes a  true  and  proper  contract.  ''  There  is  no  middle  term,"  said  Lord 
Cranworth,(<)  '■'■  no  tcrtium  quid  between  a  representation  so  made  to  be 
effective  for  such  a  purpose  and  a  contract ;  they  are  identical." 

§  190.  In  order  to  enable  the  court  to  give  relief  on  the  ground  of 
contract,  to  a  person  having  acted  on  the  faith  of  another's  statements, 
the  representation  or  promise  on  which  he  relies  must  be  clear  and  abso- 
lute. Therefore  where  a  father,  after  declining  to  enter  into  a  settlement, 
added  that  he  should  allow  his  daughter  the  interest  of  £2,000,  and  that 
if  she  married  he  might  bind  himself  to  do  it,  and  pay  the  principle  at 
his  decease,  it  was  held  not  to  be  an  absolute  agreement. (i;) 

§  191.  Where  the  representation  is  merely  of  what  the  party  intends 
P^or-,  to  do,  or  the  promise  is  one  for  the  performance  *of  which  the 
L  -J  person  making  it  refuses  to  contract,  and  insists  that  the  recipi- 
ent shall  rely  on  his  honour,  the  engagement  is  of  a  merely  honorary 
nature,  and  therefore  not  enforceable  by  the  court. (w)  In  one  case  the 
guardians  of  a  young  lady,  who  was  a  minor,  objected  to  her  marriage 
until  a  suitable  settlement  should  be  made  on  behalf  of  her  intended 
husband  :  his  uncle,  from  whom  he  had  expectations,  having  been  previ- 
ously consulted  on  the  matter,  was  informed  of  this  resolution  ;  in  reply 
to  which  he  wrote  to  his  nephew,  '<  My  sentiments  respecting  you  con- 
tinue unalterable  :  however,  I  shall  never  settle  any  part  of  my  property 
out  of  my  power  so  long  as  I  exist.  My  will  has  been  made  for  some  time, 
and  I  am  confident  that  I  shall  never  alter  it  to  your  disadvantage.  I 
repeat  that  my  Tipperary  estate  will  come  to  you  at  my  death,  unless 
some  unforeseen  occurrence  should  take  place."  The  letter  further  alleged 
that,  as  he  had  never  settled  anything  on  any  of  his  nephews,  his  doing 
so  in  this  case  would  cause  jealousy  in  the  family :  this  letter  the  writer 
desired  might  be  communicated  to  the  young  lady's  guardians.  It  was 
held  that  the  intention  of  the  uncle  was  not  to  settle  his  property,  and 
that  therefore  the  letter  could  not  be  treated  as  a  contract. (w) 

Cooke,  2  Exch.  654 ;  Howard  v.  Hudson,  2  Ell.  &  Bl.  1  ;  Foster  v.  Mentor  Life  As- 
surance Company,  3  Ell.  &  Bl.  48. 

(r)  Bold  V.  Hutchinson,  20  Beav.  250,  affirmed  5  De  G.  M.  &  G.  558,  on  different 
grounds.     See  also  Jameson  v.  Stein,  21  Beav.  5. 

(s)  Per  Lord  Cranworth  in  Money  v.  Jorden,  2  De  G.  M.  &  G.  332. 

{t)  In  Maunscll  v.  White,  4  Ho.  Lords,  1056. 

(m)  Randall  v.  Morgan,  12  Ves.  67.  See  the  observations  on  this  case,  of  Lord 
St.  Leonards  in  Maunsell  v.  White,  1  Jon.  k  L.  567. 

{v)  Cf.  Lord  Walpole  v.  Lord  Orford,  3  Ves.  402  ;  infra,  §  393. 

(w)  Maunsell  v.  White,  1  Jon.  &  L.  539,  affirmed  4  llo.  Lords,  1039. 


NO  N -CONCLUSION  OF  THE  CONTRACT.        gl 

§  192.  The  same  principle  governed  the  decision  of  the  case  of  Money 
V.  Jorden  -Jx)  the  facts  of  the  case  were,  shortly,  that  B.  was  under  a 
bond  for  the  payment  of  a  sum  of  money  to  A.  ;  that  B.  being  about  to 
marry,  A.  said  she  should  never  distress  him  about  the  bond,  that  she 
had  given  it  up,  and  would  never  enforce  it :  but  on  being  requested  to 
give  up  the  bond,  she  declined  to  do  so,  saying  that  she  would  be  trusted, 
and  that  B.  might  rely  on  her  word.  B.  married,  and  A.  subsequently 
having  put  the  bond  in  suit,  *B.  sought  the  interference  of  the  p:i:Q/.-i 
court  by  injunction.  The  representations  in  question  were  held  L  J 
to  be  binding  by  the  master  of  the  rolls  in  the  first  instance,  by  Lord 
Justice  Knight  Bruce  on  appeal  to  the  lords  justices,  and  by  Lord  St. 
Leonards  in  the  house  of  lords,  whilst  the  contrary  was  ultimately  decided 
by  a  majority  in  the  house,  consisting  of  Lords  Cranworth  and  Broug- 
ham. The  question  was  in  a  considerable  part  one  of  evidence.  But 
Lords  Cranworth  and  St.  Leonards  differed  as  to  the  effect  of  a  repre- 
sentation of  intention,  the  latter  holding  such  to  be  binding,  and  the 
former  not.OA 

§  193.  On  the  same  principle  it  was  that  where  a  settlement  was  not 
ready  at  the  time  of  the  marriage,  and  the  lady  married  on  the  husband's 
engagement  in  honour  that  she  should  have  the  same  advantage  of  the 
agreement,  as  if  it  were  in  writing  and  duly  executed,  the  court  refused 
to  interfere,  as  the  engagement  was  merely  honorary. (2)  And  again, 
where  letters  were  sent  containing  what  only  amounted  to  a  general  assur- 
ance that,  if  a  tenant  acted  to  the  satisfaction  of  his  landlord,  he  would 
deal  honourably  and  handsomely  with  him  in  regard  to  renewing  his  lease, 
this  assurance  was  discriminated  from  a  matter  of  contract,  and  was  not 
enforced  by  the  court. (a) 

§  194.  The  circumstances  of  the  case  of  3Iorehouse  v.  Colvin(Z()  were 
these.  A  testator,  who  had  by  his  will  bequeathed  £12,500  to  his  daugh- 
ter, wrote  a  letter  to  an  old  friend  of  his  in  India,  to  whom  the  young 
lady  was  consigned,  and  therein  stated  that,  in  case  of  her  marrying  with 
his  approbation,  her  husband  should  have  £2000  on  the  marriage,  and 
continued,  "  nor  will  that  be  all  :  she  is  and  shall  be  noticed  in  my  will ; 
but  to  what  further  ^amount  I  cannot  precisely  say,  owing  to  the  f-:^Q--i 
present  reduced  and  reducing  state  of  interest,  which  puts  it  out  L  '  J 
of  my  power  to  determined  at  present  what  I  may  have  to  dispose  of." 
The  substance  of  these  terms  was  communicated  to  the  intended  husband  : 
the  testator  revoked  his  will,  and  made  another,  omitting  the  legacy,  and 
giving  his  daughter  a  residuary  and  contingent  interest :  the  master  of 
the  rolls,  and  afterwards  the  lords  justices,  held  that  there  was  no  contract 
which  could  be  enforced. 

195.  We  will  now  proceed  to  consider  the  cases  in  which  a  represen- 
tation, followed  by  conduct  of  the  party  to  whom  it  is  made,  has  been 
held  to  be  binding. 

(z)  15  Beav.  372 ;  2  De  G.  M.  &  G.  318 ;  5  Ho.  Lords,  185. 

(y)  With  regard  to  the  force  of  an  expression  of  intention,  see,  besides  the  cases 
above  stated,  Norton  v.  Wood,  1  R.  &  My.  178;  Cross  v.  Sprigg,  6  Ha.  553,  and 
infra,  §?  200,  202. 

{z)  Viscountess  Montacute  v.  Maxwell,  1  P.  Wms.  G18. 

(a)  Price  t.  Asheton,  1  Y.  &  C.  Ex.  441.  (i)   15  Beav.  341. 


82       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  196.  These  cases  have,  for  the  most  part,  turned  upon  representa- 
tions made  in  the  course  of  marriage  treaties,  followed  by  marriage  made 
on  the  faith  of  such  representations, — a  class  of  cases  in  which  the 
court  is  inclined  to  attach  more  than  ordinary  weight  to  the  language  of 
the  one  party,  when  it  is  calculated  to  convey  a  false  impression  to  the 
other,  (c) 

§  197.  Where  the  proposal  is  in  writing,  the  marriage  and  other  acts 
are  relied  on  only  as  evidence  of  acceptance  ;  but  where  the  proposal  has 
been  verbal,  the  acts  must  be  relied  on  also  as  constituting  a  case  of  part- 
performance,  with  regard  to  which  marriage  alone  is  from  the  words  of 
the  Statute  of  Frauds,  not  sufficient.  The  cases  on  part-performance  in 
connection  with  such  agreements, (</)  and  also  of  marriage  in  fraud  of  a 
parol  agreement,(e)  are  respectively  considered  elsewhere. 

§  198.  The  principle  of  the  cases  now  under  discussion  is  established 
by  several  old  decisions,  to  which  it  will  be  sufficient  to  refer,(/)  before 
considering  the  more  recent  cases. 

pj^Qo-,  *§  199.  In  Luders  v.  Anstej,(g'j  a  husband  before  marriage 
L  -I  wrote  a  letter  proposing  a  settlement  of  the  lady's  fortune, 
securing  certain  benefits  to  the  children  of  the  lady's  first  marriage  : 
shortly  after,  the  marriage  took  place,  and  Lord  Loughborough  held  that 
the  husband  was  bound  by  the  letter,  though  bonds  to  execute  a  settle- 
ment had  subsequently  been  entered  into,  also  securing  benefits,  but  dif- 
ferent ones,  to  the  said  children.  "  There  is  no  locus poenitentice,"  said 
his  lordship,  "  in  this  case ;  and  I  should  require  a  positive  distinct  dis- 
sent :  and  that  could  not  be  evidenced  by  anything  but  an  actual  settle- 
ment before  marriage,  varying  from  that." 

§  200.  In  Saunders  v.  Cramer,(/«)  a  paper  signed  by  a  lady,  express- 
ing her  intention  of  leaving  her  granddaughter  a  certain  sum,  to  be 
secured  by  a  bond,  which  offer  was  to  be,  and  was  in  fact  communicated 
to  the  intended  husband  of  the  young  lady,  and  was  followed  by  a  mar- 
riage, was  held  a  binding  proposal.  The  mention  of  the  bond  went  to 
show  that  it  was  intended  to  be  binding  on  the  party  making  it. 

§  201.  In  Montgomery  v.  E,eilly,(<")  the  eldest  son  came  into  estates, 
subject  to  a  jointure  to  his  mother,  and  portions  to  his  brothers  and 
sisters,  and  carried  on  a  correspondence  with  a  friend  of  the  family  with 
a  view  to  the  increase  of  these  charges,  and  ordered  the  payment  of  the 
increased  jointure  and  interest  on  the  increased  portions  :  on  the  faith 
of  a  representation  made  on  the  strength  of  these  acts  by  the  family 
friend,  a  daughter  married  :  the  interest  on  the  increased  portion  was 
continued  to  be  paid  to  the  daughter,  and  the  agent's  accounts  in  which 
these  payments  were  stated  passed ;  and  the  eldest  son  took  possession 
*QQ  1  of  some  property  under  the  arrangement  with  his  brothers  and 
L         -J  sisters,  to  which  he  would  not  otherwise  *have  been  entitled. 

(c)  Per  Lord  St.  Leonards  in  Maunsell  v.  White,  1  Jon.  &  L.  563. 
{d)  See  infra,  g  408.  (e)  See  infra,  §  380. 

(  /")  Moore  v.  Hart,  1  Vern.  110,  201 ;  Wankford  v.  Fotberlej,  2  Vern.  322  ;  Half- 
penny V.  Ballet,  2  Vern.  373  ;  Cookes  v.  Mascall,  2  Vern.  200. 

(ff)  4  Ves.  501 ;  S.  C.  5  Ves.  213.  {h)  3  Dr.  &  W.  87. 

(t)  1  Bli.  N.  S.  364;  S.  C.  1  Dow,  N.  S.  62. 


INCOMPLETENESS  OF  THE  CONTRACT.        §3 

The  house  of  lords  decided  that  there  was  a  contract  binding  on  the  eldest 
brother,  and  specifically  enforced  it. 

§  202.  In  Du  Biel  v.  Thompson, (/•)  in  written  proposals  made  on  the 
marriage  treaty,  the  father  expressed  that  he  "  intended  to  leave  his 
daughter  a  further  sum  of  £10,000  in  his  will,  to  be  settled  on  her 
and  her  children,  the  disposition  of  which,  supposing  she  had  no  chil- 
dren, to  be  prescribed  by  the  will  of  her  father."  This  was  held  to 
create  an  obligation.  These  proposals  were  made  subject  to  revision  ; 
but  it  was  held  that  that  power  was  determined  by  their  acceptance  by 
the  intended  husband,  and  the  marriage  with  the  father's  consent.  This 
decision  of  Lord  Langdale  was  afiirmed  by  Lord  Cottenham,(A  and  after- 
wards by  the  house  of  lords,  (m) 


*CH AFTER    III.  [*90] 

OF    THE   INCOMPLETENESS  OF    THE    CONTRACT. 

§  203.  "  Nothing  is  more  established  in  this  court,"  said  Lord  Hard- 
wicke,(a)  speaking  of  contracts  which  the  court  will  enforce.  <'  than  that 
every  agreement  of  this  kind  ought  to  be  certain,  fair,  and  just  in  all  its 
parts.  If  any  of  those  ingredients  are  wanting  in  the  case,  this  court 
will  not  decree  a  specific  performance."  "I  lay  it  down  as  a  general  pro- 
position," said  Lord  I\osslyn,(i)  '^  to  which  I  know  no  limitation,  that 
all  agreements,  in  order  to  be  executed  in  this  court,  must  be  certain 
and  defined  :  secondly,  they  must  be  equal  and  fair ;  for  this  court, 
unless  they  are  fair,  will  not  execute  them  :  and  thirdly,  they  must  be 
proved  in  such  manner  as  the  law  requires." 

§  204.  In  regard  to  objections  founded  on  the  want  of  any  of  these 
qualities  in  the  contract,  or  on  the  incapacity  of  the  court  to  perform  the 
contract,  or  its  illegality,  the  court  is,  fi'om  obvious  motives  of  justice, 
somewhat  unwilling  to  entertain  the  objection,  when  it  is  made  after 
part-performance,  from  which  the  defendant  has  derived  benefits,  and 
the  plaintiff  cannot  be  fully  recompensed  except  by  the  performance  of 
the  agreement  in  specie. (c) 

§  205.  The  qualities  of  completeness,  certainty,  and  fairness,  which 
will  now  be  considered,  will  in  great  part,  be  best  ^explained  by  ^  ^^^  -, 
showing  cases  in  which  they  have  been  considered  as  being  want-  L  J 
ing.  The  qualities  of  completeness  and  certainty  are  not  perhaps  truly 
separable ;  but  under  the  former  I  shall  rather  consider  those  cases 
where  there  is  the  absolute  want  of  some  term  in  the  contract ;  under 

(k)  3  Beav.  469.  (l)   12  CI.  &  Fin.  61,  n. 

(m)   12  CI.  &  Fin.  46,  s.  n.,  Hammersley  v.  Du  Biel. 

(a)  In  Buxton  v.  Lister,  3  Atky.  386.     See  infra,  f  342. 

(b)  In  Lord  Walpole  v.  Lord  Orford,  3  Yes.  420  ;  accordingly.  Underwood  v. 
Ilithcox,  1  Ves.  Sen.  279;  Franks  v.  Martin,  1  Ed.  309. 

(c)  See  I  54  and  g  309. 


84   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

the  latter  head  of  certainty,  those  where  it  is  not  the  entire  want  of  the 
term,  but  the  want  of  sufficient  exactitude  in  it,  which  has  furnished  a 
defence  to  a  specific  performance. (c^) 

§  206.  The  time  at  which  the  completeness  of  the  contract  is  to  be 
ascertained  is  the  filing  of  the  bill  :  so  that  it  was  not  sufficient  for  the 
purpose  of  obtaining  an  immediate  decree,  to  prove  that  the  consent  of 
a  tenant  for  life,  which  was  essential  to  the  contract,  was  given  before 
the  hearing. (e)  It  is  an  obvious  principle  of  justice,  that  the  adoption 
of  a  contract  by  a  third  party  shall  not  so  relate  back  as  to  subject  a 
party  to  legal  proceedings  in  respect  of  its  non-performance,  the  non-per- 
formance having  at  the  time  been  justifiable. (/) 

§  207.  To  this  principle  there  are  some  exceptions,  or  apparent  excep- 
tions, which  it  is  well  briefly  to  notice.  (1.)  When  the  contract  is  incom- 
plete through  the  default  of  the  defendant,  and  the  incompleteness  is  one 
which  can  be  remedied,  the  court  will  not  refuse  its  aid  :  thus,  where  an 
agreement  had  been  entered  into  for  granting  an  annuity  for  three  lives, 
to  be  named,  and  the  consideration  had  been  paid,  but,  through  the 
defendant's  refusing  to  proceed,  the  lives  had  not  been  named,  the  plain- 
tiff was  allowed  to  perfect  his  contract  by  nominating  three  lives  who 
r*Q9  1  ^^^^  ill  being  at  the  time  of  the  contract.(^)  (2.)  A  bill  may  be 
L  ■'J  ^maintained  on  a  contract  where,  though  some  term  be  not  ascer- 
tained, the  court  has  the  means  of  ascertaining  it,  on  the  principle  of  the 
maxim  id  certuni  est  quod  certum  reddi  jyotest.  Thus,  in  a  contract  for 
the  sale  of  lands  under  the  Lands  Clauses  Consolidation  Act,  in  which 
the  sum  was  not  ascertained,  the  court  decreed  the  defendants  to  issue 
their  warrant  to  the  sheriff  to  summon  a  jury  to  settle  the  compensa- 
tion :(/i)  and  the  same  principle  is  illustrated  by  the  cases  on  the  requi- 
site completeness  as  to  subject-matter  and  price. (Vj 

§  208.  The  necessary  completeness  of  the  contract  may  be  considered 
in  respect  of  (1)  the  subject-matter,  (2)  the  parties  to  the  contract, 
(3)  the  price,  and  (4)  the  terms. 

§  209.  Every  valid  contract  must  contain  a  description  of  the  subject- 
matter:  but  it  is  not  necessary  that  it  should  be  so  described  as  to  admit 
of  no  doubt  what  it  is  ;  for  the  identity  of  the  actual  thing  and  the  thing 
described  may  be  shown  by  extrinsic  evidence.  This  flows  from  the 
very  necessity  of  the  case;  for  all  actual  things  being  outside  of  and  be- 
yond the  agreement,  the  connection  between  the  words  expressing  the 
agreement  and  things  outside  it  must  be  established  by  something  other 
than  the  agreement  itself,  that  is,  by  extrinsic  evidence  :  the  same  rule 
is  admitted,  and  from  the  like  necessity,  with  regard  both  to  persons  and 
things  mentioned  in  wills  ;f7c)  and  in  the  cases  of  agreements  within  both 

((/)  See  also  the  cases  stated  infra,  ^  342. 

\e)  Adams  v.  Brooke,  1  Y.  &  C.  C.  C.  627. 

(/)  Right  V.  Cuthell,  5  East,  491 ;  Doe  d.  Mann  v.  Walters,  10  B.  &  C.  626;  Doe 
d.  Lyster  v.  Goldwin,  2  Q.  B.  143. 

{g)  Pritchard  v.  Ovey,  1  J.  &  W.  396;   Lord  Kensington  v.  Phillips,  3  Dow,  61. 

(A)  Walker  v.  Eastern  Counties  Railway  Company,  6  Ha.  594 ;  but  see,  as  to 
this  case,  §  21.  See  also  Owen  v.  Thomas,  3  My.  &  K.  353  ;  Monro  v.  Taylor,  8 
Ha.  51.  (0  Post,  I  212,  214. 

{k)  See  the  observations  of  Lord  Crauworth  in  Clayton  v.  Lord  Nugent,  13  M. 
&  W.  207. 


INCOMPLETENESS  OF  THE  CONTRACT.        85 

the  fourth  and  seventeenth  sections  of  the  Statute  of  Frauds,  parol  evi- 
dence as  to  identity  is  admissible. (/)  Thus,  for  instance,  the  expression, 
"  Mr.  Ogilvie's  house,"  was  held  sufficient,  and  extrinsic  evidence  was 
admitted  to  show  what  house  it  referred  to.(m)  *So,  where  an  ^  ^^^  -i 
agreement  referred  to  another  writing,  parol  evidence  of  the  L  J 
identity  of  a  certain  writing  with  that  referred  to  was  admitted  ;(?i)  and 
in  a  recent  case  parol  evidence  was  admitted  to  show  the  meaning  of 
"£50  moreof  preuiium,"andof  "the  profit  rent  of  the  present  tenant. "(o) 

§  210.  Where  it  is  necessary  to  call  in  extrinsic  evidence,  the  connec- 
tion of  the  subject-matter  of  the  agreement,  and  the  thing  in  respect  of 
which  specific  performance  is  sought,  must  be  alleged  in  the  bill,  and 
supported  by  sufficient  proof.(p) 

§  211.  It  is,  however,  essential  that  the  description  of  the  subject- 
matter  should  be  so  definite,  as  that  it  may  be  known  with  certainty  what 
the  purchaser  imagined  himself  to  be  contracting  for,(^)  and  that  the 
court  may  be  able  to  ascertain  what  it  is.(r)  And  so  in  a  recent  case,(s) 
where  there  was  an  agreement  for  the  letting  of  "coals,  etc.,"  the  state- 
ment of  the  subject-matter  was  thought  by  K.  Bruce,  L.  J.,  insufficient, 
and  specific  performance  refused  on  that  amongst  other  grounds. 

§  212.  With  regard  to  the  description  of  the  subject-matter,  the 
maxim  id  cerium  est  quod  certum  reddi  j^ofest  applies.  Thus,  where 
the  memorandum  of  the  agreement  contained  no  specific  description  of 
the  property  sold,  but  referred  to  the  deeds  as  being  in  the  possession  of 
a  person  named,  the  court  thought  that  the  property  might  easily  be 
ascertained  before  the  master,  and  held  the  description  of  the  subject- 
matter  sufficient. (^)  And  again,  a  contract  to  sell  an  estate  within  cer- 
tain ascertained  boundaries,  ^described  as  partly  freehold,  and  |-  ^f..  ., 
partly  leasehold,  is  not  void  for  uncertainty,  because  it  is  a  good  L  J 
agreement  to  sell  the  vendor's  interest  in  the  property;  but  the  purchaser 
is  entitled  to  have  it  reduced  to  certainty  by  the  boundary  of  the  pro- 
perties of  difi"erent  tenures  being  ascertained,  or  shown  to  be  capable  of 
being  so.(?«) 

§  213.  The  names  of  the  contracting  parties  are  another  element 
which  must  appear  in  the  agreement,  or  the  memorandum  of  it,  in  order 
to  constitute  a  binding  contract. (^;) 

§  214.  In  all  cases  of  sale,  it  is  evident  that  price  is  an  essential  ingre- 
dient of  the  contract,  and  that  where  this  is  neither  ascertained  nor 

(l)  Sari  V.  Bourdillon,  1  C.  B.,  N.  S.  188.       (m)  Ogilvie  v.  Foljambe,  3  Mcr.  53. 

(n)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  21,  33.     See  post,  g  361. 

(o)  Skinner  v.  M'Douall,  2  De  G.  &  S.  265. 

Ip)  Price  v.  Griffith,  1  De  G.  M.  &  G.  80. 

(q)  Stewart  v.  AUiston,  1  Mer.  26,  33. 

(r)  Kennedy  v.  Lee,  3  Mer.  441,  451 ;  per  Lord  Eldon  in  Daniels  v.  Davison, 
16  Ves.  256. 

(s)  Price  v.  Griffitli,  1  De  G.  M.  &  G.  80.  See  also  Inge  v.  Birmingham,  Wol- 
verhampton and  Stour  Valley  Railway  Company,  3  De  G.  M.  «fe  G.  658. 

{()  Ou-en  V.  Thomas,  3  xMy.  &  K.  353.  See  also  Haywood  v.  Cope,  4  Jur.  X.  S. 
227,  (M.  R.) 

(u)  Monro  v.  Taylor,  8  Ila.  51. 

(v)  Champion  v.  Plummer,  1  N.  R.  253  ;  Warner  v.  Willingtou,  3  Drew,  523  ; 
Squire  v.  Whitton,  1  Ho.  Lords,  333. 


86   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

rendered  ascertainable,  the  contract  is  void  for  iucompleteness,  and  in- 
capable of  enforcement. (?o) 

§  215.  Accordingly,  where  A.  agreed  to  sell  an  estate  to  B.  for  £1500 
less  than  any  other  purchaser  would  give,  the  contract  was  held  void ; 
for,  if  the  estate  was  not  to  be  sold  to  any  other  purchaser  than  B.,  it 
was  impossible  to  know  what  such  a  purchaser  would  give  for  it. (a:;)  So 
again,  where  there  was  an  agreement  to  sell  at  a  price  to  be  fixed  by  two 
surveyors,  and  they  made  their  award,  but  that  did  not  sufficiently  and 
finally  ascertain  the  price,  specific  performance  was  refused  :{y)  and  the 
like  was  the  result  of  a  similar  case,  where  the  award  was  such  as  the 
court  could  not  act  on,  by  reason  of  circumstances  of  great  impropriety 
on  the  part  of  one  of  the  arbitrators,  and  the  award  being  based  on  an 
erroneous  view  of  the  facts. (2;) 

§  216.  It  is  not,  however,  necessary  that  the  contract  should  deter- 
mine the  price  in  the  first  place.  It  may  appoint  a  way  by  which  it  is 
r  *QPi  1  to  be  thereafter  determined,  *in  which  case  the  contract  is  per- 
L  J  fected  only  when  the  price  has  been  so  determined. (a)  In  case 
of  default  in  this  respect,  the  contract  remains  imperfect  and  incapable 
of  being  enforced ;  for  the  court  will  never  direct  a  payment  of  such  a 
sum  as  A.  and  B.  shall  fix. (6) 

§  217.  The  cases  in  which  a  mode  is  provided  by  the  contract  itself 
for  the  subsequent  ascertainment  of  the  price,  fall  under  two  classes  :  the 
first  comprises  those  where  the  contract  is  to  sell  at  a  price  to  be  fixed 
by  arbitrators,  this  mode  of  ascertainment  being  an  essential  ingredient 
in  the  contract ;  the  other  embraces  those  eases  where  the  contract  is 
substantially  for  a  sale  at  a  fair  price,  the  mode  of  ascertainment,  though 
it  may  be  indicated  by  the  contract,  being  subsiduary  and  non-essential. 
In  the  former  class  of  cases,  if  the  mode  of  ascertainment  fail,  the  con- 
tract remains  incomplete,  and  consequently  incapable  of  being  enforced  : 
in  the  latter,  where  the  mode  of  ascertainment  has  failed,  the  court  will 
have  recourse  to  some  other  means  of  coming  at  the  fair  price,  and  of 
thus  carrying  out  the  contract  in  its  essential  parts. 

§  218.  Of  the  first  class,  Milnes  v.  Gery,(c-)  before  Sir  William  Grant, 
may  be  considered  as  the  leading  case  :  there  was  there  a  contract  that 
land  should  be  sold  at  a  price  to  be  fixed  by  one  valuer  appointed  on  each 
side,  or  their  umpire:  the  valuers  could  not  agree;  and  the  master  of 
the  rolls  held  the  contract  to  be  incomplete,  and  that  the  court  could  not 
supply  the  defect  by  appointing  other  persons  as  valuers,  which  would 
be  to  execute  a  contract  difi"erent  from  that  of  the  parties ;  although, 
where  it  is  merely  an  agreement  to  sell  at  a  fair  price,  that  is  a  matter 
which  the  court  can  ascertain.  "A  man,"  said  Sir  J.  Leach, (c?)  "who 
agreed  to  sell  at  a  price  to  be  named  by  A.,  B.,  and  C,  could  not  be  com- 

(w)  Elmore  v.  Kingscote,  5  B.  &  0.  583  ;  Goodman  v.  Griffiths,  26  L.  J.  Ex.  145. 
(x)  Bromley  v.  Jefferies,  2  Vern.  415. 
\y)  Hopcraft  v.  Hickman,  2  S.  &  S.  130. 
(z)  Chichester  v.  Macintjre,  4  Bli.  N.  S.  79. 

(a)  Cf.  Inst.  lib.  iii.  tit.  24,  s.  1 ;  Pothier,  dii  Gontrat  de  Vente,  part  1,  sec.  2, 
art.  2,  \  2. 

(6)  Darbey  v.  Whitaker.  4  Drew,  134.  (c)   14  Ves.  400. 

(d)  In  Morse  v.  Merest,  6  Mad.  26. 


INCOMPLETENESS  OP  THE  CONTRACT.        $7 

pelled  by  a  court  of  equity  to  sell  *at  any  other  price."  This  j-  ^^.^  -. 
principle  has  governed  the  decision  of  several  other  cases  of  spe-  *-  J 
cific  pcrforiiiauce,(e)  and  may  further  be  illustrated  by  the  cases  at  com- 
mon law.(/)  The  fact  that  the  obstacle  arises  from  the  defendant's  de- 
fault will  not,  it  seems,  get  over  the  difficulty;  for  where  the  agreement 
was  to  sell  at  a  price  to  be  fixed  by  arbitrators,  but  in  consequence  of  the 
defendant's  having  refused  to  execute  the  arbitration-bond,  it  was  uncer- 
tain whether  any  award  would  be  made,  the  court  refused  to  proceed  ;(^) 
and  the  same  result  followed  where  the  refusal  of  one  of  the  valuers  to 
proceed  appeared  to  arise  from  the  information  given  to  him  by  the  de- 
fendant, of  his  intention  not  to  complete. (A)  In  a  recent  case,rQ  where 
the  price  was  to  be  ascertained  by  one  of  two  alternative  modes,  and  no 
election  had  been  made  as  to  the  mode  of  ascertainment,  the  court  held 
that  no  contract  had  been  constituted. 

§  219.  The  second  class  comprises  those  cases  in  which  the  contract  is 
substantially  to  sell  at  a  fair  price,  the  mode  of  ascertaining  that  being 
subsidiary.  Lord  Eldon,(7i-j  indeed,  seems  to  have  doubted  whether  the 
court  would  ever  take  upon  itself,  in  this  respect,  to  separate  the  essen- 
tial from  the  non-essential  terms  of  the  contract :  he  considered  that, 
where  a  reference  had  been  made  to  arbitration,  and  the  judgment  of  the 
arbitrators  was  not  given  in  the  time  and  manner  according  to  the  agree- 
ment, the  court  had  no  jurisdiction  to  substitute  itself  for  the  arbitrators, 
and  make  the  award,  even  when  the  substantial  thing  to  be  done  was 
agreed  between  the  parties,  and  the  time  and  manner  in  which  it  was 
to  be  done  was  that  which  *they  had  put  upon  others  to  exe-  ^  ^^»  -. 
cute.  Sir  William  Grant,  however,  not  only  indicated  the  dis-  L  J 
tinction  of  the  two  classes  of  cases,  in  his  judgment  in  Milnes  v.  Gery,(/) 
but  he  acted  upon  it  in  two  other  cases  before  him.  In  the  ea.r\icr,(mS 
in  consequence  of  the  lunacy  of  the  vendor,  the  valuers  could  not  be 
nominated ;  but  the  master  of  the  rolls  did  not  consider  this  an  insur- 
mountable difficulty,  saying  that,  "  if  there  was  a  valid  and  binding  con- 
tract, the  supervening  incapacity  of  one  party  cannot  deprive  the  other 
of  the  benefit ;"  and  he  accordingly  directed  an  issue  as  to  the  lunacy, 
as  a  preliminary  step  in  the  cause.  In  the  other  case,(?i)  there  was  an 
agreement  to  grant  a  lease,  to  contain  such  conditions  as  A.  B.  should 
think  reasonable  and  proper;  and  the  master  of  the  rolls  referred  it  to 
the  master  to  settle  the  lease,  and  not  to  A.  B., — considering  the  agency 
of  A.  B.  not  to  be  of  the  essence  of  the  contract,  and  that  the  court  will 
not  grant  relief  through  the  medium  of  a  reference  compulsory  on  the 
other  party.      And  so  in  a  case(o)  before  Sir  John  Stuart,  where  there 

(e)  Blundell  v.  Brettargh,  17  Ves.  232  ;  Gourlay  v.  Duke  of  Somerset,  19  Ves. 
429 ;  A^ar  v.  Macklew,  2  S.  &  S.  418  ;  Darbey  v.  Whitaker,  4  Drew,  134. 

(/)  Thurnell  v.  Balburnie,  2  M.  &  W.  786 ;  Morgan  v.  Birnie,  9  Bing.  672  ;  Mil- 
ner  v.  Field,  5  Ex.  829. 

(ff)  Wilks  V.  Davis,  3  Mer.  507.  (/()  Darbey  v.  Whitaker,  4  Drew,  134. 

(?)  Morgan  v.  Milman,  3  De  G.  M.  &  G.  24. 

(k)  In  Cooth  V.  Jackson,  6  Ves.  34.     See  also  Blundell  v.  Brettargh,  17  Ves.  232. 

(I)  Ubi  sup.  (m)  Hall  v.  Warren,  9  Ves.  605. 

(«)  Gourlay  v.  Duke  of  Somerset,  19  Ves.  429. 

(o)  Jackson  v.  Jackson,  1  Sm.  &  G.  184;  Paris  Chocolate  Company  v.  Crystal 
Palace  Company,  3  Sm.  &  G.  119,  123. 


88   FKY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

was  an  agreement  to  sell  laud  and  bleacli-works  at  a  sum  fixed,  and  the 
plant  and  machinery  to  be  taken  at  a  value,  to  be  ascertained  by  valuers 
to  be  appointed  by  the  parties,  it  was  held  that  this  was  a  subsidiary 
stipulation  only,  and  that  it  did  not  form  an  obstacle  to  specific  perform- 
ance, which  was  accordingly  decreed  with  costs. (jj) 

§  220.  In  another  case(^q)  before  the  same  vice-chancellor,  he  remarked 
that,  where  possession  is  referable  to  an  agreement  to  give  a  fair  con- 
sideration, the  amount  of  which  has  not  been  settled,  the  court  will,  in 
r*QQ  1  favour  of  ^possession  and  expenditure  referable  to  this  agree- 
L  '  -I  meut,  endeavour  by  every  means  within  the  legitimate  bounds  of 
its  jurisdiction  to  ascertain  the  amount  of  the  consideration. 

§  221.  It  is  of  course  essential  to  the  completeness  of  the  contract, 
that  it  should  express  not  only  the  names  of  the  parties,  the  subject- 
matter,  and  the  price,  but  all  the  other  material  terms.  What  are,  in 
each  case,  the  material  terms  of  the  contract,  and  how  far  it  must  descend 
into  details  to  prevent  its  being  void  as  incomplete  and  uncertain,  are 
questions  by  no  means  easy  to  answer,  and  must  of  course  be  determined 
by  a  consideration  of  each  agreement  separately.  It  may,  however,  be 
laid  down  that  the  court  will  carry  out  an  agreement  framed  in  general 
terms,  where  the  law  will  supply  the  details  ;  but  if  any  details  are  to  be 
supplied  in  modes  which  cannot  be  adopted  by  the  court,  there  is  then 
no  concluded  agreement  capable  of  being  enforced. (?•) 

§  222.  Though  it  may  be  impossible  to  define  what  is  the  necessary 
completeness  in  the  terms  of  a  contract,  it  is  easy  to  give  instances  in 
which  contracts  have  been  held  incomplete  in  this  respect.  Such  was 
the  case  where  an  agreement  for  a  building-lease  did  not  state  the  time 
when  the  term  was  to  commence  ;(s)  where  it  was  not  stated  what  time 
an  increased  rent  was  to  commence  from  -Jt)  where  the  agreement  did  not 
state  the  length  of  the  term  to  be  granted,  either  directly  or  by  refer- 
ence ;(«)  where  a  contract  for  a  lease  for  lives  neither  named  the  lives  nor 
decided  by  whom  they  were  to  be  named  ;(v\  where  an  auctioneer's 
*receipt  was  set  up  as  a  contract,  but  it  did  not  refer  to  the  con- 
L  J  ditions  of  sale,  or  show  the  proportion  which  the  deposit  was  to 

bear  to  the  price  -(w)  where  there  was  a  term  as  to  the  expenses  which 
was  not  settled  by  the  contract  ;(a;)  and  where  there  was  a  contract  for  a 
partnership,  which  defined  the  term  of  years,  but  was  silent  as  to  the 
amount  of  capital  and  the  manner  in  which  it  was  to  be  provided. (y) 

(p)  As  to  the  way  in  which  referees  as  to  price  ought  to  proceed,  and  on  what 
grounds  they  may  determine,  see  Eads  v.  Williams,  4  De  G.  M.  &  G.  674. 

(q)  Meynell  v.  Surtees,  3  Sm.  &  Gif.  101,  113,  affirmed  1  Jur.  N.  S.  737. 

(r)  Per  Turner,  L.  J.,  in  South  Wales  Railway  Company  v.  Wythes,  5  De  G.  M. 
&  G.  888;  per  Lord  St.  Leonards  in  Ridgwayv.  Wharton,  6  Ho.  Lords,  285.  See 
post,  g  229. 

(s)  Blore  v.  Sutton,  3  Mer.  237.  See  also  Cox  v.  Middleton,  2  Drew,  209  ;  Her- 
sey  V.  Giblett,  18  Beav.  174. 

(t)  Lord  Ormond  v.  Anderson,  2  Ba.  &  Be.  363. 

(m)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22  ;  Gordon  v.  Trcvelyan,  1  Pri.  64. 

(v)  Wheeler  v.  D'Esterre,  2  Dow,  359.  But  query  whether  the  lessee  cannot 
name  the  lives  when  the  agreement  is  silent.  See  also  Lord  Kensington  v.  Phil- 
lips, 3  Dow,  61. 

(w)  Blagden  v.  Bradbear,  12  Ves.  466.     (x)  Stratford  v.  Bosworth,  2  V.  &  B.  341. 

(y)  Downs  v.  Collins,  6  Ha.  418. 


INCOMPLETENESS  OF  THE  CONTRACT.        89 

§  223.  Besides  the  express  terms  of  the  contract,  there  arc  others  which, 
in  the  absence  of  any  expression  to  the  contrary,  are  implied  by  presump- 
tion. (5;)  With  regard  to  such  terms,  therefore,  whether  they  be  neces- 
sary terms  or  not,  the  silence  of  the  contract  does  not  render  it  incom- 
plete ;  thus,  an  agreement  to  sell  land,  not  specifically  expressing  what 
interest,  is  taken  to  be  an  agreement  to  sell  the  whole  of  the  vendor's 
interest. (a)  An  agreement  to  sell  a  house  simply,  implies  that  the 
interest  sold  is  the  fee  simple  ;(M  and  an  agreement  to  renew,  is  pre- 
sumed to  be  for  the  same  term  as  the  preceding  lease. (c) 

§  224.  In  every  contract  for  the  sale  of  land,  a  condition  is  implied 
for  a  good  title, (fZ)  and  for  the  delivery-up  of  the  deeds ;  so  that  where 
this  was  prevented  by  the  accidental  destruction  of  the  deeds  subsequent 
to  the  contract,  it  was  held  that  the  vendor  could  not  enforce  the  sale. (f;) 
The  title  to  be  shown,  of  course  varies  according  to  the  nature  of  the 
*property  to  be  sold  :(/)  in  the  case  of  the  sale  of  a  lease,  it  r^jc-inA-i 
includes  the  title  of  the  lessor,(^)  except  in  the  case  of  a  bishop's  L  J 
lease. (7t)  It  is  to  be  observed  that  this  is  a  condition  for  the  benefit  of 
the  purchaser,  and  may  accordingly  be  waived  by  him,  though  the  ven- 
dor may  desire  to  insist  on  it  as  a  ground  for  discharging  himself  from 
the  contract. (/) 

§  225.  An  agreement  for  an  underlease  implies  that  the  sub-lessee  is 
to  be  subject  to  the  covenants  in  the  superior  lease;  and  it  probably  also 
implies  that  those  covenants  are  usual. (^-^  With  regard  to  the  latter 
implication,  the  doctrine  of  Cosser  v.  Collinge,  that  it  is  the  sub-lessee's 
duty  to  inquire  into  the  covenants  of  the  superior  lease,  seems  against  it : 
but  it  is  at  least  questionable,  if  a  contract  were  silent  and  unusual  cove- 
nants were  found  in  the  head  lease,  and  no  possession  and  no  notice  had 
taken  place,  whether  the  court  would  enforce  specific  performance.//) 

§  226.  But  however  that  may  be,  this  implication,  if  it  exists,  may  be 
rebutted,  (1)  by  the  sub-lessee's  taking  possession  of  the  property,  it 
being  his  duty  to  inform  himself  of  the  covenants  before  doing  so ;  or 
(2)  by  notice,  as  where  the  sub-lessee's  solicitor  has  seen  the  lease,  and 
so  has  constructive  notice  of  the  covenants  contained  in  it.(??i) 

§  227.  The  question  whether  or  not  there  is  a  presumption  in  execu- 

(2)  The  elements  of  all  contracts  have  by  some  jurists  been  placed  in  three 
classes :  1st,  those  things  which  are  essential,  without  which  the  contract  cannot 
exist;  2ndly,  those  which  are  of  the  nature  but  not  of  the  essence  of  the  contract, 
being  implied  in  it  unless  expressly  excluded,  but  capable  of  being  thus  excluded 
without  subverting  the  contract;  and  3dly,  the  things  that  are  accidental.  The 
terms  in  question  correspond  of  course  with  the  second  of  these  classes.  Pothier, 
Tr.  des  Oblig.  part.  i.  ch.  i.  sec.  1,  art.  1,  ^  3. 

(a)  Bower  v.  Cooper,  2  Ha.  408.  (6)  Hughes  v.  Parker,  8  M.  &  "VT.  244. 

(c)  Price  v.  Assheton,  1  Y.  &  C.  Ex.  82. 

{d)  Doe  d.  Gray  v.  Stanion,  1  M.  &  W.  695,  701 ;  Worthington  v.  Warrington, 
5  C.  B.  635. 

(e)  Bryant  T.  Busk,  4Russ.  1.  (/)  Curling  v.  Flight,  6  Ha.  41;  S.  C.  2  Phil.  613. 
(g)  Fildes  v.  Hooker,  2  Mer.  424  ;  Souter  v.  Drake,  5  B.  &  Ad.  902  ;  Hall  v.  Betty, 
4  Man.  &  Gr.  410.  As  to  an  agreement  for  the  sale  of  an  agreement  for  a  lease, 
see  Kintrea  v.  Preston,  25  L.  J.  Ex.  287;  and  see  post,  g  832  et  seq. 

(A)  Fane  v.  Spencer,  2  Mer.  430,  n.  (?)  Bennett  v.  Fowler,  2  Beav.  302. 

(k)  Cosser  v.  Collinge,  3  My.  &  K.  283;  Smith  v.  Capron,  7  Ha.  185. 

(I)  See  Flight  v.  Barton,  3  My.  &  K.  282. 

(m)  Cosser  v.  Collinge,  Smith  v.  Capron,  ubi  sup. 


90       iFRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

tory  contracts  in  favour  of  tlie  insertion  in  the  executed  contract  of  all 
such  stipulations  as  are  ^usually  inserted  in  such  contracts,  ap- 
L         J  pears  one  still  open  in  our  law.(«) 

§  228.  An  implied  term  may  of  course  be  rebutted  by  conditions  of 
sale;  as  where  they  limit  the  title  to  be  deduced,  or  provide  that  the 
purchaser  shall  simply  take  the  vendor's  interest. (o)  And  further, 
although  an  express  term  of  a  contract  is  in  nowise  affected  by  notice, (;)) 
yet  notice  is  sufficient  to  rebut  the  presumption  of  an  implied  term ;  for 
that  is  something  not  growing  out  of  the  agreement  itself,  but  given  by 
law,  and  a  matter  therefore  not  of  contract  but  of  notice. (g')  So  that, 
for  instance,  where  a  purchaser  has  notice  that  the  vendor  is  only  a 
lessee,  he  cannot  insist  on  the  implication  which  might  otherwise  arise, 
that  the  contract  is  for  the  fee.(r) 


[*102]  *CH  AFTER   I  Y. 

or  THE  UNCERTAINTY  OF  THE  CONTRACT 

§  229.  It  will  be  obvious  that  an  amount  of  certainty  must  be  required 
in  the  specific  performance  of  a  contract  in  equity  greater  than  that 
demanded  in  an  action  for  damages  at  law.  For,  to  sustain  the  latter 
proceeding,  the  proposition  required  is  the  negative  one,  that  the  defend- 
ant has  not  performed  the  contract, — a  conclusion  which  may  be  often 
arrived  at  without  any  exact  consideration  of  the  terms  of  the  contract ; 
whilst  in  equity  it  must  appear,  not  only  that  the  contract  has  not  been 
performed,  but  what  is  the  contract  which  is  to  be  performed.  It  is 
perhaps  impossible  to  lay  down  any  general  rule  as  to  what  is  sufficient 
certainty  in  a  contract ;  but  it  may  be  safely  stated  that  the  certainty 
required  must  be  a  reasonable  one,  having  regard  to  the  subject-matter 
of  the  contract,(rt)  and  the  circumstances  under  which,  and  with  regard 
to  which  it  was  entered  into. (6)  Thus  in  one  case,(c)  where  there  was  an 
af^reement  between  two  railway  companies,  that  the  one  should  have  the 
right  of  running  with  their  engines,  carriages,  and  trucks,  and  carrying 
traffic  upon  the  line  of  the  other,  Vice-Chancellor  Farker  held  that  this 
was  not  too  uncertain  to  be  enforced.  "  It  means,"  he  said,  "a  reason- 
able  use, — a  use  consistent  with  the  proper  ^enjoyment  of  the 
L  J  subject-matter,  and  with  the  rights  of  the  granting  party."(c?) 
And  we  have  already  seen  that  where  the  terms  of  the  contract  are 

(n)  Ricketts  v.  Bell,  1  De  G.  &  Sm.  335,  where  the  question  was  much  discussed 
by  V.  C.  Kuight  Bruce. 
'  (o)  Freme  v.  Wright,  4  Mad.  364.  (p)  Barnett  v.  Wheeler,  7  M.  &  W.  3G4. 

{q)  Ogilvie  V.  Foljarabe,  3  Mer.  53,  G4. 
(r)  Cowley  v.  Watts,  17  Jur.  172,  (M.  R.)       (a)  See  Arist.  Eth.  Nic.  lib.  i.  c.  3. 

(b)  Marsh  v.  Milligan,  3  Jur.  N.  S.  979,  (Wood,  V.  C.) 

(c)  Great  Northern  Railway  Company  v.  Manchester,  Sheffield,  and  Lincoln- 
shire Railway  Company,  5  De  G.  k  Sm.  138. 

{<!)  p.  149. 


UNCERTAINTY  OF  THE  CONTRACT.  Ql 

general,  but  the  details  are  such  as  the  law  will  supply,  the  contract  will 
not  be  considered  as  objectionable  for  vagueness  and  uncertainty. ^c)  In 
one  case  a  contract  by  a  railway  company  with  a  landowner,  to  make  such 
roads,  ways,  and  slips  for  cattle  as  might  be  necessary,  was  not  held  in- 
capable of  being  performed  by  the  court ;  but  it  is  to  be  observed  that 
iu  this  case  the  company  had  entered  and  made  the  railway. (/) 

§  230.  On  the  ground  of  uncertainty,  the  court  has  refused  specifi- 
cally to  perform  marriage-articles  prepared  by  a  Jewish  rabbi  in  an 
obscure  form,  said  to  prevail  amongst  German  Jews;(r/)  and  also  an 
agreement  for  the  sale  of  land,  where  there  was  a  doubt  as  to  the  identi- 
fication of  a  plan  to  be  incorporated  into  the  agreement.(7t)  In  another 
case((")  the  court  refused  to  interfere  in  respect  of  an  engagement  by  the 
defendant,  Mr.  Kean,  to  perform  at  a  theatre.  <■<■  Independently  of  the 
difficulty  of  compelling  a  man  to  act,"  said  the  vice-chancellor,  "  there 
is  no  time  stated,  and  it  is  not  stated  in  what  character  he  shall  act ; 
and  the  thing  is  altogether  so  loose  that  it  is  perfectly  impossible  for  the 
court  to  determine  upon  what  scheme  of  things  Mr.  Kean  shall  perform 
his  agreement.'YA;) 

§  231.  So  again,  where  the  agreement  is  discrepant  with  itself,  or 
there  are  two  different  agreements  relating  to  the  same  subject-matter, 
the  court  will  generally  refuse  specific  performance. (/)  In  a  recent 
case,(m)  where  an  oifer  Was  *made  to  take  a  house  for  a  specific  r^-inA-i 
term  and  at  a  certain  rent,  if  put  into  thorough  repair,  and  stat-  L  -I 
ing  also  that  the  drawing-rooms  would  be  required  to  be  handsomely 
decorated  according  to  the  present  style,  and  making  some  further  re- 
quirements as  to  painting,  and  the  ofler  was  accepted,  the  lords  justices, 
reversing  a  decision  of  the  master  of  rolls,  dismissed  the  bill  on  the 
ground  of  the  uncertainty  imported  into  the  agreement  by  the  expres- 
sions in  the  offer  as  to  repairs.  Where  a  contract  was  for  the  purchase 
of  "  the  land  required"  for  the  construction  of  a  railway,  at  so  much  per 
acre,  and  the  contract  contained  provisions  agreed  on  between  the  land 
agents  of  the  company  and  the  vendor  as  to  roads,  culverts,  etc.  etc.,  the 
master  of  the  rolls  (following  the  decision  of  Yice-Chancellor  Turner  in 
Webb  v.  Direct  London  and  Portsmouth  liailway  Company, (»)  then 
unreversed)  held  that  a  surveyor  going  upon  the  ground  and  having  the 
contract  in  his  hand,  could  accurately  ascertain  the  land  to  be  taken, 
and  that  the  terms  of  the  contract  were  therefore  sufficiently  explicit; 
but  this  decision  was  overruled  on  appeal,  and  Lord  Justice  Knight 
Jiruce  held  the  language  ''  too  vague,  too  uncertain,  too  obscure  to  enable 
this  court  to  act  with  safety  or  propriety.  "(rA 

(e)  Per  Turner,  L.  J.,  in  South  Wales  Railway  Company  v.  Wythes,  5  De  G.  M. 
k  G.  888  ;  ante,  ^221. 

(/)  Saunderson  v.  Cockermoulh  and  Workington  Railway  Company,  11  Beav. 
497,  affirmed  by  Lord  Cottenham  :  Parker  v.  Taswell,  4  Jur.  N.  S.  183,  (Stuart, 
V.  C. ;)  see  ante,  I  204. 

(</)  Franks  v.  Martin,  1  Ed.  .300.  (A)  Hodges  r.  Horsfall,  1  Ru.«s.  &  M.  IIG. 

(i)  Kemble  v.  Kean,  6  Sim.  333.  [k)  p.  337. 

[l)  Callaghan  v.  Cailaghan,  8  CI.  &  Fin.  374. 

{m)  Taylor  v.  Portington,  7  De  G.  M.  &  G.  328.  («)  9  Ha.  129. 

(o)  Lord  James  Stuart  v.  London  and  North-western  Railway  Compauv,  15  Beav. 
513;  S.  C.  1  De  G.  M.  &  G.  721.  '  " 


92   FRY  ON  SPECIFIC  PERFORMANCE  OF  CONTRACTS. 

§  232.  In  another  case,  where  there  was  an  agreement  in  general 
terms  for  the  construction  of  a  railway  according  to  the  terms  of  a  speci- 
fication to  be  prepared  by  the  engineer  of  the  company  for  the  time  being, 
it  was  held  too  vague,  obscure,  and  uncertain  to  be  enforced  -.(p)  and  the 
like  was  held  in  the  case  of  an  agreement  to  give  the  plaintifls  accommo- 
dation for  the  sale  of  their  articles  -in  the  refreshment-rooms  of  the 
defendants,  and  to  furnish  them  with  the  necessary  appliances. (5')  And 
r*in"'n  agf^in,  where  on  the  sale  *of  a  piece  of  land  there  were  stipula- 
••  J  tions  that,  in  the  event  of  there  being  any  coals  or  ironstone 

under  the  land,  a  royalty  of  so  much  per  ton  should  be  paid  thereon  by 
the  purchaser  to  the  vendor,  and  also  that  any  mines  required  to  be  left 
by  a  certain  railway  company  were  to  be  paid  for  as  if  the  same  had  been 
gotten,  out  of  the  money  to  be  received  from  the  railway  company;  it 
was  held,  with  regard  to  the  latter  stipulation,  that  it  was  incapable  of 
being  worked  out,  inasmuch  as,  if  the  company  bought  the  mines,  the 
contingency  whether  there  were  any  coal  or  ironstone  under  the  land 
would  remain  undecided ;  and  as  to  the  former  stipulation,  that  the  par- 
ties seemed  to  have  intended  to  work  it  out  by  a  reservation  of  mines  to 
the  vendor,  and  a  lease  of  them  by  the  vendor  to  the  purchaser,  but  that 
there  was  nothing  to  guide  the  court  as  to  the  stipulations  to  be  included 
in  such  a  lease,  except  the  rates  of  royalty;  and  the  court  accordingly 
declined  to  enforce  the  agreement  for  sale.(r)    « 


[*106]  CHAPTER    V. 

or   THE   WANT    OP   FAIRNESS   IN    THE    CONTRACT. 

§  233.  There  are  many  instances  in  which,  though  there  is  nothing 
that  actually  amounts  to  fraud,  there  is  nevertheless  a  want  of  that 
equality(o)  and  fairness  in  the  contract  which,  as  we  have  seen,  are  essen- 
tial in  order  that  the  court  may  exercise  its  extraordinary  jurisdiction  in 
specific  performance.  In  cases  of  fraud  the  court  will  not  only  not  per- 
form a  contract,  but  it  will  order  it  to  be  delivered  up  to  be  cancelled  ; 

(p)  South  Wales  Railway  Company  v.  Wythes,  5  De  G.  M.  &  G.  880. 

(q)  Paris  Chocolate  Company  v.  Crystal  Palace  Company,  3  Sm.  &  Gif.  119. 

(r)  Williamson  v.  Wootton,  3  Drew,  210.  See  also,  for  uncertainty,  Harnett  v. 
Yielding,  2  Sch.  &  Lef.  549;  Tathara  v.  Piatt,  9  Ha.  660;  Taylor  v.  Gilbertson,  2 
Drew,  391 ;  Holmes  v.  Eastern  Counties  Railway  Company,  3  K.  &  J.  675;  Sturge 
V.  Midland  Railway  Company,  Week.  Rep.  1857-1858,  233,  (Stuart,  V.  C.;)  ante, 
I  42. 

(«)  The  equalitj' which  natural  justice  requires  to  find  place  in  contracts  is  well 
explained  by  Grotius,  De  Jure  Belli  ac  Pacis,  lib.  ii.  cap.  12,  sec.  8  et  seq.  Ac- 
cording to  him,  it  consists  partly  in  acts,  (and  these,  as  well  the  precedent  acts,  as 
the  principal  act,)  and  partly  in  the  subject-matter  of  the  contract.  As  to  the  pre- 
cedent acts,  equality  is  required  between  the  parties,  both  as  to  the  knowledge  of 
the  thing  and  the  exercise  of  the  will;  as  to  the  principal  act,  the  equality  re- 
quired is,  that  more  be  not  demanded  than  is  just ;  and  lastly,  as  to  the  subject- 
matter,  the  equality  is  to  be  sought  in  the  absence  of  all  hidden  defects  in  it  or 
mistakes  as  to  it. 


WANT    OF    FAIRNESS    IN    THE    CONTRACT.  93 

but  there  arc  many  cases  in  wliicli  the  court  will  stand  still,  and  interfere 
neither  for  the  one  purpose  nor  the  other.(//) 

§  2o4.  The  unfairness  in  question  may  be  either  in  the  terms  of  the 
contract  itself,  or  it  may  be  in  matters  extrinsic  and  the  circumstances 
under  which  it  was  made:  with  regard  to  the  latter,  parol  evidence  is  of 
course  admissible. (c) 

*§  235.  The  fairness  of  the  contract,  like  all  its  other  qualities,  j-^,  ^--. 
must  be  judged  of  at  the  time  it  is  entered  into,  and  not  by  subse-  L  J 
quciit  events  :(</)  for  the  fact  that  events,  uncertain  at  the  time  of  the 
contract,  may  afterwards  happen  in  a  manner  contrary  to  the  expectation 
of  one  or  both  of  the  parties,  is  no  reason  for  holding  the  contract  to 
have  been  unfair.  Therefore,  "  where  parties,  whose  rights  are  ques- 
tionable, have  equal  knowledge  of  facts,  and  equal  means  of  ascertaining 
what  their  rights  really  are,  and  they  fairly  endeavour  to  settle  their  res- 
pective rights  amongst  themselves,  every  court  must  feel  disposed  to 
support  the  conclusions  or  agreements  to  which  they  may  fairly  come  at 
the  time,  and  that  notwithstanding  the  subsequent  discovery  of  some 
common  error'Ye)  or  a  subsequent  judicial  decision  showing  the  rights 
of  the  parties  to  have  been  different  to  what  they  supposed,  or  that  one 
party  had  nothing  to  give  up.(y')  And  the  uncertainty  which  may  render 
a  compromise  fair,  and  therefore  binding,  may  be  either  in  some  future 
and  uncertain  event,  or  the  future  ascertainment  of  some  event  past  and 
therefore  in  itself  certain,  as,  for  instance,  whether  a  son  was  legitimate 
or  not,(,y)  or  whether  an  uncle  had  made  a  particular  will  or  not.f/t) 

§  236.  The  principle  just  stated  is  perhaps  most  frequently  illustrated 
by  cases  of  family  arrangement  or  of  compromise ;  but  it  is  applicable  to 
contracts  of  whatsoever  nature.  The  case  of  Parker  v.  Palmer,('*)  which 
came  before  the  court  in  the  fourteenth  year  of  Charles  II.,  illustrates 
this.  Parker,  as  it  appears,  during  the  commonwealth,  had  sold  a  lease, 
which  he  had  from  a  dean  and  chapter  for  three  lives,  to  Palmer,  the 
price  agreed  on  being  £4320.  Subsequently  the  purchaser  agreed  with  the 
vendor,  that  if  *he  would  abate  him  £420,  he  would  reconvey  the  r:ic-|no-i 
lease  whenever  the  king  and  dean  and  chapter  were  restored  :  the  L  J 
abatement  was  made,  and  the  king  and  church  restored,  and  thereupon 
the  vendor  sued  for  a  reconveyance,  which  was  accordingly  decreed  by 
the  master  of  the  rolls,  and  affirmed  by  the  lord  chancellor  and  Sir  Or- 
lando Bridgman.  Again,  where  a  man  agreed  to  sell  for  £20  an  allot- 
ment thereafter  to  be  made  to  him  under  an  enclosure,  and  it  turned  out 
to  be  worth  £200,  he  was  nevertheless  compelled  to  perform  his  agree- 
ment :(/i;)  and  so  in  a  case0  before  Sir  John  Leach,  where  he  maintained 

(b)  See  per  Lord  Eldon  in  Willan  v.  Willan,  16  Ves.  83 ;  Savage  v.  Taylor,  Forr. 
234 ;  Twining  v.  Morrice,  2  Bro.  C.  C.  326  ;  Savage  v.  Brocksopp,  18  Ves.  335 : 

.per  C.  B.  in  Davis  v.  Sjmonds,  1  Cox,  406;  Redsliaw  v.  Bedford  Level,  1  Ed.  34G. 

(c)  Davis  v.  Sjmonds,  1  Cox,  402.  (d)  So,  as  to  hardship,  see  post,  §  252. 
(c)  Per  Lord  Langdale  in  Pickering  v.  Pickering,  2  Beav.  56  ;  Frank  v.  Frank, 

1  Cas.  in  Ch.  84. 

(/)  Lawton  v.  Campion,  18  Beav.  87.  (ff)  Stapilton  v.  Stapilton,  1  Atkv.  2. 

(h)  Heap  V.  Tonge,  9  Ha.  90.  (i)   1  Cas.  in  Ch.  42. 

(k)  Anon,  before  Sir  Jos.  Jekyll,  cited  in  Cooth  v.  Jackson,  6  Veg.  24. 
(I)  Ex  parte  Peake,  1  Mad.  346. 

November,  1858. — 7 


94       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

a  contract  entered  into  without  any  fraud  or  concealment,  by  which  one 
partner  agreed  with  the  retiring  partner  to  give  him  £2000  for  the  con- 
cern, though  they  knew  the  partnership  to  be  insolvent,  his  honor,  said, 
"  Suppose  the  case  of  a  trade  attended  with  great  risk,  one  partner  despair- 
ing, the  other  confident  and  willing  to  buy  the  share  of  his  partner,  and 
give  him  £2000  for  it;  on  what  possible  ground  could  this  contract  be 
invalidated  ?"(m)  The  cases  in  which  the  thing  sold  is  described  in 
general  terms, — as,  for  example,  a  manor, — and  the  extent  and  value  of 
it  is  at  the  time  uncertain, (?()  and  also  the  cases  in  which  the  vendor 
only  sells  such  interest  in  the  property  as  he  has,  where  that  which  is 
sold  turns  out  differently  to  the  purchaser's  expectations,  are  analogous 
to  those  before-stated. (o) 

§  237.  But,  in  order  to  bring  a  contract  within  this  principle,  the  events 
which  are  afterwards  reduced  to  a  certainty  must  at  the  time  of  the  con- 
tract have  been  really  uncertain  and  unascertained  to  both  parties,  either 
from  the  nature  of  things  or  the  state  of  knowledge  of  both  parties.  A  con- 
tract entered  into  by  one  party  who  knows,  with  another  who  does  not 
„  know,  will  not,  it  seems,  be  *executed  by  the  court,  though  its  terms 
L  J  may  be  such  as  to  put  the  ignorant  party  on  his  guard,  and  to 
throw  the  uncertainty  on  him.  In  one  case,  the  particulars  described 
the  subject  of  the  sale  as  the  interest,  if  any,  of  Francis  Norton,  in  cer- 
tain stock  and  also  in  a  lease,  and  stated  that  there  was  a  lien  of  £100 
on  the  lease,  and  the  conditions  provided  that,  even  if  it  should  appear 
that  Francis  Norton  had  no  interest  in  the  premises,  the  purchaser  should 
have  no  remedy  against  the  vendor  to  compel  him  to  refund ;  in  conse- 
quence of  the  state  of  certain  partnership  accounts  which  was  known  to 
the  vendor,  but  which  the  purchaser  had  no  means  of  ascertaining,  the 
interest  sold  was  of  no  value  whatsoever,  and  was  in  fact  only  exposed  to 
sale  for  the  purpose  of  enabling  certain  proceedings  to  be  taken  against 
the  separate  estate  of  Francis  Norton  :  the  vendor  made  no  representations 
as  to  the  value,  but  received  from  the  purchaser  £150  as  the  purchase- 
money  :  the  vice-chancellor,  Wood,  set  aside  the  sale  at  the  suit  of  the 
purchaser,  with  costs  against  the  vendor,  on  the  ground  that  the  purcha- 
ser was  buying  what  might  be  worth  nothing,  whilst  the  vendor  was 
selling  what  was  worth  nothing.(p) 

§  238.  Further,  the  principle  in  question  will  not  apply  where,  though 
the  terms  of  the  contract  may  express  an  uncertainty,  that  uncertainty 
was  not  understood  by  the  parties  to  comprise  the  event  which  actually 
happens.  Thus,  where  A.  contracted  with  B.  for  the  sale  of  a  manor, 
and  stipulated  that  he  should  not  be  obliged  to  define  its  boundary,  and 
the  manor  turning  out  to  comprise  a  valuable  property  not  before  known 
to  either  party  to  be  part  of  it,  the  purchaser,  who  had  previously  sought 
to  repudiate  the  contract,  filed  his  bill  for  performance,  the  master  of  the 
rolls,  on  consideration  of  the  evidence,  came  to  the  conclusion  that  neither- 
party  intended  to  sell  or  buy  a  *mere  doubtful  matter,  and  that 
L         -I  both  parties  at  the  time  of  the  contract  believed  that  it  included 

(m)  p.  355.     See  also  Haywood  v.  Cope,  4  Jur.  N.  S.  221,  (M.  R.) 
(n)  Baxendale  V.  Scale,  19  Beav.  601.  (o)  See  post,  ^  830. 

(p)  Smith  V.  Harrison.  26  L.  J.  Ch.  412,  (Wood,  V.  C.)  infra,  ^  243. 


WANT    OF    FAIRNESS    IN    TUE    CONTRACT.  95 

something  different  from  what  would  then  be  conveyed  to  the  plaintiff,  if 
the  conveyance  were  to  be  executed  as  he  chiimed  it,  and  accordingly 
dismissed  the  bill,  but  without  costs. (j) 

§  239.  In  judging  of  the  fairness  of  a  contract,  the  court  will  look  not 
merely  at  the  terms  of  the  agreement  itself,  but  at  all  the  surrounding 
circumstances, — such  as  the  mental  incapacity  of  the  parties,  though 
falling  short  of  insanity, (/•)  their  age  or  poverty,  the  manner  in  which 
the  agreement  was  executed,  the  circumstances  that  the  parties  were 
acting  without  an  attorney,  that  the  property  was  reversionary,  or  that 
the  price  was  not  the  full  value. (.s) 

§  240.  Therefore,  whenever  there  are  evidences  of  distress  in  the  party 
against  whom  performance  is  sought,(/)  or  he  was  an  illiterate  person,  or 
whenever  there  are  any  circumstances  of  surprise,  or  want  of  advice, (?<) 
or  anything  which  seems  to  import  that  there  was  not  a  full,  entire,  and 
intelligCDt  consent  to  the  contract,(i')  the  court  is  extremely  cautious  in 
carrying  it  into  effect.  Still  it  is  not  the  doctrine  of  the  court  that  a  man 
cannot  contract  without  his  solicitor  at  his  elbow,(v<;)  or  that  a  man  in 
insolvent  circumstances,  or  in  prison,  is  disabled  from  selling  his  estate  : 
and  if  a  contract  made  under  such  circumstances  *will  bear  the  ^^^^^^ 
careful  examination  of  the  court  and  the  full  light  of  day,  it  will  L  J 
be  specifically  performed. (.r) 

§  241.  It  is  enough,  generally  speaking,  to  induce  the  court  to  refuse 
performance,  that  there  are  any  circumstances  about  the  making  of  the 
contract  which  render  it  not  fair  and  honest  to  call  for  its  execution ;  it 
is  not  needful  that  there  was  any  intentional  unfairness  or  dishonesty  at 
the  time.r^)  A  leading  case  on  this  subject  is  Twining  v.  Morrice,(-") 
where  the  bill  was  by  a  purchaser  against  a  vendor :  at  the  sale,  which 
was  by  auction,  the  solicitor,  who  was  known  to  be  the  agent  of  the  ven- 
dor, had  made  some  biddings  for  the  plaintiff,  which  from  his  known  re- 
lationship to  the  vendor,  were  thought  to  be  the  biddings  of  a  puffer,  and 
so  damped  the  sale  :  the  act  was  done  in  inadvertence  by  the  solicitor ; 
but  as  it  was  done  at  the  plaintiff's  instance,  specific  performance  was 
refused  by  Lord  Kenyon. 

§  242.  The  like  refusal  to  interfere  will  follow  where  there  has  been 
an  improper  suppression  of  a  fact  by  one  party  from  another  :  as  where 
an  estate  required  that  a  wall  should  be  repaired,  to  protect  it  from  the 

(g)  Baxendalc  v.  Seale,  19  Beav.  601. 

(r)  Clarkson  v.  Haiiway,  2  P.  Wms.  203  ;  Gartside  v.  Isherwood,  1  Bro.  C.  C. 
558;  Bridgman  v.  Green,  Wiliu.  Not.  58,  61.     See  ante,  §  161. 

(s)  Bell  V.  Howard,  9  Mod.  302  ;  Martin  v.  Mitchell,  2  J.  &  W.  413,  423  ;  Stanley 
V.  Robinson,  1  R.  &  M.  527. 

(t)  Kerneys  v.  Hansard,  Coop.  125;  Johnson  t.  Nott,  1  Yern.  271. 

(m)  Stanley  v.  Robinson,  1  R.  &  M.  527;  Ilelsham  v.  Langley,  1  Y.  &  C.  C.  C. 
175. 

(v)  The  nature  of  the  proper  consent  to  a  contract  seems  not  incorrectly  ex- 
pressed in  the  following  extract: — "  Consensus  debet  esse  :  1,  verus  seu  internus  et 
mutuus  ;  2,ali(|uo  signo  extcrno  expressus  ;  3,  liber  et  plene  deliberatus  ;  4,  serius, 
cum  animo  se  obligandi." — Mariani  Examen,  ^  278. 

(w)  Lightfoot  V.  Heron,  3  Y.  &  C.  Ex.  586 ;  Haberdashers'  Company  v.  Isaac,  3 
Jur.  N.  S.  611,  (Wood,  V,  C.) 

(x)  Brinkley  v.  Hance.  Dru.  175.  (y)  Mortlock  v.  Buller,  10  Yes.  292,  305. 

(z)  2  Bro.  C.  C.  32G. 


96   FRY  ON  STECIFIC  PERFORMANCE  OF  CONTRACTS. 

river  Thames,  and  this  was  industriously  suppressed ;(«)  and  where  A. 
agreed  to  sell  his  land  to  B.  at  a  halfpenny  per  square  yard,  which 
amounted  to  about  £500,  when  the  real  value  of  the  estate  was  £2000, 
and  B.  industriously  suppressed  this  circumstance  from  A.,  the  conceal- 
ment was  considered  such  a  fraud  as  to  avoid  the  transaction  ;(M  and 
where  a  lessee  obtained  the  renewal  of  a  lease  on  the  surrender  of  an  old 
one,  knowing  and  suppressing  the  fact,  which  was  unknown  to  the  lessor, 
that  the  person  on  whose  life  the  old  lease  depended  was  in  extremis, 
the  court  declined  to  aid  the  lessee. (c)  And  in  a  recent  case,(fZ)  before 
r*i  -1  o-i  Lord  Cranworth,  where  the  same  ^solicitor  acted  for  both  parties, 
L  J  but  did  not  disclose  to  both  parties  the  whole  nature  of  the  deal- 
ing, or  place  his  principals  at  arms'  length  in  the  transaction,  the  court 
refused  to  enforce  specific  performance  at  the  suit  of  the  purchaser.  The 
cases  turning  on  the  suggestion  of  what  is  false,  which  constitutes  a  mis- 
representation, will  be  considered  elsewhere. (e) 

§  243.  We  have  already  seen  that,  whatever  be  the  form  of  the  con- 
tract, where,  at  the  time  of  entering  into  it,  one  party  was  cognizant  of 
a  fact  of  which  the  other  could  not  be  informed, — so  that  what  was  cer- 
tain to  the  one  was  represented  as,  and  was,  in  fact,  uncertain  to  the 
other, — the  court  will  not  interfere  specifically  to  perform  it.(/) 

§  244.  On  the  ground  of  want  of  ftiirness,  the  court  will  not  assist  one 
party  to  a  contract,  specifically  to  enforce  it  against  the  other,  who,  at  the 
time  of  entering  into  it,  was  in  a  state  of  intoxication,  and  that  even  in 
the  absence  of  any  unfair  advantage  taken  of  his  situation,  which  would 
induce  the  court  to  rescind  the  contract. (c/)  But  the  mere  fact  that  some 
glasses  of  liquor  had  been  drunk  before  the  signing  of  the  contract  will 
not  avoid  it,  if  there  be  nothing  to  show  that  the  defendant  acted  with- 
out a  full  understanding  of  what  he  was  doing. (7t)  In  a  recent  case, 
Vice-Chancellor  Stuart  refused  to  allow  a  third  party,  who,  having  got  a 
subsequent  transfer  of  the  property,  was  the  substantial  defendant,  to 
avail  himself  of  this  defence. (i) 

§  245.  One  kind  of  that  unfairness  which  stays  the  interference  of  the 
court  arises  where  the  enforcement  of  the  contract  would  be  injurious  to 
third  persons.  Therefore,  where  an  estate  was  settled  in  strict  settlement, 
r*iiQn  g^^^'^o  *^  *i\iQ  settlor  a  life  estate  and  an  ultimate  remainder, 
L  J  and  the  tenant  for  life  entered  into  a  contract  for  the  sale  of  the 
fee,  the  court  refused  to  allow  the  purchaser  to  take  the  interest  of  the 
tenant  for  life  with  compensation,  on  the  ground  that  a  father  and  a 
stranger  would  be  likely  to  use  an  estate  without  impeachment  of  waste 
in  a  different  way,  and  that  therefore  the  sale  might  prejudice  the  inter- 
ests of  the  persons  in  remainder. (^-) 

(a)  Shirley  v.  Stratton,  1  Bro.  C.  C.  440.  {h)  Deane  v.  Rastron,  1  Ans.  64. 

(c)  Ellard'v.  Lord  Llandaff,  1  Ball  &  B.  241.     See  also  post,  §  4G1  et  seq. 

id)  Hesse  v.  Briant,  G  De  G.  M.  &  G.  623.  (c)  Post,  §  425,  et  seq. 

(/)  Smith  V.  Harrison,  26  L.  J.  Ch.  412,  (Wood,  V.  C.)  stated  ante,  I  237. 

\g)  Cooke  v.  Clayworth,  18  Ves.  12  ;  Nagle  v.  Baylor,  3  Dr.  &  W.  60.  In  But- 
ler V.  Mulrihill,  1  Bli.  137,  a  contract  obtained  by  fraud  from  an  intoxicated  party 
was  set  aside. 

[h)  Lightfoot  V.  Heron,  3  Y.  &  C.  Ex.  586. 

(i)  Shaw  V.  Mackray,  1  Sm.  &  G.  537.  (A-)  Thomas  v.  Bering,  1  Ke.  72D. 


WANT  OF  FAIRNESS  IN  TUE  CONTRACT.       97 

§  246.  And  a  settlor  iu  a  vuluiitary  settlement  will  not  be  allowed  to 
sue  for  a  sale  of  the  estate  so  as  to  override  that  settlement,  and  thus  to 
prejudice  the  interests  of  the  parties  claiming  under  it.(/) 

§  247.  The  court  will  never  exercise  its  extraordinary  power  in  com- 
pelling a  specific  performance,  where  to  do  so  would  necessitate  a  breach 
of  trust,  or  compel  a  person  to  do  what  he  was  not  lawfully  competent  to 
do, — partly,  as  it  seems,  on  the  ground  of  the  unfairness  and  illegal  taint 
of  such  a  contract  in  itself,  and  partly  of  the  hardship  to  which  it  would 
expose  the  person  furced  to  execute  it.  The  plaintiff  ''  must  also,"  said 
Lord  lledesdale,(?H)  <<show  that,  in  seeking  the  performance,  he  does 
not  call  upon  the  other  party  to  do  an  act  which  he  is  not  lawfully  com- 
petent to  do  ',  for,  if  he  does,  a  consequence  is  produced  that  quite  passes 
by  the  object  of  the  court  in  exercising  the  jurisdiction,  which  is  to  do 
more  complete  justice."  Therefore,  where  trustees  enter  into  a  binding 
agreement  for  a  sale  under  a  power,  but  so  disadvantageous  as  to  be  a 
breach  of  trust,  the  court  will  not  specifically  perform  the  agreement  :(h) 
and  so,  again,  where  trustees  for  sale  for  the  benefit  of  creditors  made  a 
sale  by  auction,  under  circumstances  *of  improvidence  and  likely  r^-i-ij^-i 
to  prejudice  the  owner  of  the  estate,  for  the  sake  of  immediately  L  J 
realizing  money  to  pay  his  creditors,  the  court  j)ursued  the  same  course. (t-) 
And  where,  on  the  sale  of  trust  property,  it  was  agreed  that  the  pur- 
chaser should  out  of  the  purchase-money  retain  a  private  debt  due  to  him 
from  the  trustee,  a  demurrer  to  a  bill  by  the  trustee  was  allowed. (^j) 
And  again,  where  trustees  entered  into  an  agreement  for  a  lease  which 
was  in  excess  of  their  power  :(fj[^  and  again,  where  they  entered  into  a 
covenant  for  renewal  which  was  ultra  vires,  the  court,  on  this  ground, 
in  both  cases,  refused  specific  performance. (?•)  And  where  trustees  for 
sale  misrepresented  the  value  of  the  property,  when  they  had  the  means 
in  their  power  of  stating  it  correctly,  and  the  conditions  of  sale  stipulated 
for  compensation  on  either  side,  the  lords  reversed  a  decree  for  compen- 
sation on  ihe  ground  that  the  court  would  not  carry  out  a  condition  which 
would  injure  the  cestuis  que  trust,  by  reason  of  the  neglect  of  the  trus- 
tees in  making  the  misdescription  which  was  the  ground  for  compensa- 
tion.(s)  And  in  a  recent  case,  the  court  refused  performance  of  a  con- 
tract for  the  sale  of  leaseholds  by  one  of  two  executors,  on  the  ground 
that,  under  the  circumstances  of  the  case,  it  would  be  an  injury  to  the 
cestuis  que  trust,  and  expose  the  executor  to  extraordinary  risk  from 
them,  and  that  either  of  these  grounds  was  sufficient  to  stay  the  inter- 
ference of  the  court.('/) 

(I)  Johnson  v.  Legard,  T.  &  R.  281 ;  Smith  v.  Garland,  2  Mer.  123. 

(m)  In  Harnett  v.  Yielding,  2  iSch.  &  Lef.  553. 

(n)  Mortlock  v.  Duller,  10  Ves.  292.  Accordingly  Bridger  v.  Rice,  1  J.  &  W. 
74;  Wood  v.  Richardson,  4  Beav.  174;  Maw  v.  Topham,  19  Beav.  576.  See  also 
Hill  V.  Buckley,  17  Ves.  394;  Neale  v.  Mackenzie,  1  Ke.  474. 

(o)  Ord  V.  Xoel,  5  Mad.  438.  (p)  Thompson  v.  Blackstone,  6  Beav.  470. 

(q)  Harnett  v.  Yielding,  2  Sch.  &  L.  549.  Accordingly  Byrne  v.  Acton,  1  Bro. 
P.  C.  18G. 

(r)  Bellringer  v.  Blagrave,  1  De  G.  &  S.  63. 

(s)  White  V.  Cuddon,  8  CI.  &  Fin.  7G6,  overruling  S.  C.  s.  n.  Cuddon  v.  Cart- 
wright,  4  Y.  &  C.  Ex.  25. 

(t)  Sneesby  v.  Thorne,  before  Wood,  V.  C,  1  Jur.  N.  S.  53G,  affirmed  by  L.  J.  J. 


98       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

r*iiM  §  '^^^-  Even  where  there  is  nothing  amounting  to  a  distinct 
L  J  breach  of  trust  the  court  will  be  delicate  of  interfering  against 
trustees ;  so  that  where,  in  a  contract  for  sale  by  them,  there  is  any  want 
of  a  business-like  character,  the  court  will  not,  it  seems,  interfere,  unless 
the  price  be  shown  to  be  equal,  or  more  than  equal,  to  the  value  of  the 
property,  (m) 

§  249.  The  doctrine  does  not  apply  only  to  persons  standing  in  the 
position  of  formal  trustees,  but,  it  seems,  to  all  cases  of  trust  and  confi- 
dence. So,  that  if  a  contract  were  the  result  of  a  gross  breach  of  trust 
by  an  agent  towards  his  principal,  the  court  would  not,  it  seems,  enforce 
the  consequences  of  that  Sict.(v\  And  so,  railway  directors  being  trustees 
for  the  shareholders,  and  perhaps  for  the  public  also,  the  court  will  not 
enforce  any  agreement  amounting  to  a  breach  of  trust  to  the  prejudice 
of  all  or  any  of  the  shareholders  at  the  instance  of  a  plaintiif  cognizant 
of  the  circumstances. f?r) 

§  250.  The  court  has  on  this  ground  not  only  refused  specific  perform- 
ance, but  in  a  case,(x)  where  the  purchaser  must  have  known  that  assig- 
nees in  bankruptcy  were  dealing  without  sufficient  knowledge,  and  that 
the  creditors  who  were  to  ratify  it  were  equally  ignorant,  the  court,  on 
the  ground  of  the  breach  of  trust  of  the  assignees  (as  well  as  other 
grounds,)  set  aside  the  contract. 


[*116]  ^CHAPTER   VI. 

OF  THE  HARDSHIP  OF  THE  CONTRACT. 

§  251.  It  is  a  well-established  doctrine,  that  the  court  will  not  enforce 
the  specific  performance  of  a  contract,  the  result  of  which  would  be  to 
impose  great  hardship  on  either  of  the  parties  to  it.(fl') 

§  252.  The  question  of  the  hardship  of  a  contract  is  generally  to  be 
judged  of  at  the  time  at  which  it  is  entered  into  :  if  it  be  then  fair  and 
just,  it  will  be  immaterial  that  it  may,  by  the  force  of  subsequent  cir- 
cumstances or  change  of  events,  have  become  less  beneficial  to  one 
party,(i)  except  where  these  subsequent  events  have  been  in  some  way 
due  to  the  party  who  seeks  the  performance  of  the  contract.  For  what- 
ever contingencies  may  attach  to  a  contract,  or  be  involved  in  the  per- 
il!. 1058 ;  S.  C.  1  De  G.  M.  &  G.  399.  See  also  Magram  v.  Archbold,  1  Dow,  107. 
But  in  Barrett  v.  Ring,  2  Sm.  &  Gif.  43,  Stuart,  V.  C,  compelled  trustees  of  a  road 
to  complete  a  contract  for  sale  which  had  been  made  in  forgetfulness  of  a  statu- 
tory right  of  pre-emption,  and  might  expose  them  to  an  action  for  damages. 

(u)  Goodwin  v.  Fielding,  4  De  G.  M.  &  G.  90. 

(v)  Mortlock  V.  Bullcr,  10  Ves.  292,  313. 

(w)  Shrewsbury  and  Birmingham  Railway  Company  v.  London  and  North-west- 
ern Railway  Company,  4  De  G.  M.  &  G.  115,  aflirmcd  and  this  principle  approved 
6  Ho.  Lords,  113  ;  cf."  ante,  §  260.  (z)  Turner  v.  Harvey,  Jac.  109. 

(a)  Per  Lord  Brougham  in  Gould  v.  Kemp,  2  My.  &  K.  308. 

(b)  Lawder  v.  Blachford,  Beat.  522  ;  Webb  v.  Direct  London  and  Portsmouth 
Railway  Company,  9  lla.  129. 


HARDSHIP  OF  THE  CONTRACT.  99 

formance  of  either  part,  have  been  taken  upon  themselves  by  the  parties 
to  it.  And  so  at  law,  the  reasonableness  of  a  contract  is  to  be  judged  of 
at  the  time  it  is  entered  into,  and  not  by  the  light  of  subsequent  events  ;(c\ 
and  we  have  already  seen  that  the  same  principle  applies  in  considering 
the  fairness  of  a  contract.((/) 

§  253.  On  this  ground  it  has  been  decided  by  several  cases  in  Ireland, 
that  where  a  lessee  of  renewable  leaseholds,  *covenants  with  his  p.^-^_-. 
sub-lessee  for  renewal  without  fine  on  every  renewal  to  himself,  L  J 
and  subsequently  a  renewal  is  made  to  him,  but  on  terms  far  less  bene- 
ficial than  had  been  the  custom  at  the  time  he  entered  into  the  covenant, 
and  on  the  expectation  of  the  continuance  of  which  he  has  so  covenanted, 
he  will  nevertheless  be  obliged  to  renew  to  his  sub-lessee,  and  that  with- 
out any  contribution  towards  the  increased  fine  which  he  has  paid.(f) 
So  where  railwa}'  companies  contract  for  the  purchase  of  land,  and  by 
their  laches  their  powers  expire  before  the  completion  of  the  purchase, 
that  circumstance  furnishes  them  with  no  ground  of  defence. (/') 

§  254.  This  is  further  well  illustrated  by  the  cases  on  awards  :  for 
where  the  agreement  contained  in  the  submission  is  unfair,  or  conduc- 
ing to  hardship,  the  court  will  not  interfere  ;(^)  whereas  hardship  or 
unreasonableness  in  the  award  itself  will  not  be  a  bar  to  the  interference 
of  the  court ;  for  the  submission  and  not  the  award  is  the  agreement, 
and  unreasonableness  in  the  award  is  therefore  a  matter  subsequent,  and 
arising  from  the  decision  of  a  judge  whom  the  parties  themselves  have 
chosen,  and  the  risks  attending  whose  judgment  they  have  taken  on 
themselves.  (A) 

§  255.  It  cannot  however  be  denied  that  there  are  cases  in  which  the 
court  has  refused  its  interference,  by  reason  of  events  subsequent  to  the 
contract.  Thus  in  the  City  of  London  v.  Xash,(i)  where  a  party  had 
covenanted  to  re-build  several  houses,  and,  instead  of  so  doing,  had 
built  but  two  new  houses  and  only  repaired  the  others,  but  in  so  doing 
had  laid  out  at  least  £2200,  and  put  them  in  very  good  condition  ;  Lord 
Ilardwicke  holding  that  the  covenant  was  *one  which  in  its  r^-|-i<;_-, 
nature  the  court  could  enforce,  yet  considered  that  specific  per-  L  '"J 
formance  would  entail  so  great  a  loss  and  hardship  on  the  defendant,  and 
be  so  useless  to  the  plaintiff,  that  the  court  would  not  enforce  it,  whether 
the  defendant  had  mistaken  the  sense  of  the  covenant  to  re-build,  or 
perhaps  had  even  knowingly  evaded  it.  And  so  again,  where  a  mort- 
gagor had  entered  into  a  contract  to  grant  a  lease,  expecting  to  obtain 
the  mortgagee's  consent,  but  failed  in  this,  and  was  in  circumstances 
which  rendered  him  practically  unable  to  redeem  :  in  a  suit  instituted 
by  the  intended  lessee,  the  court  refused  specific  performance,  but 
granted  the  alternative  prayer  of  the  bill  for  rescission. (7o) 

(c)  Jones  V.  Lees.  26  L.  J.  E.x.  9.  (d)  See  ante,  ?  235. 

(e)  Evans  v.  Walshe,  2  Sch.  &  Lef.  419;  Revell  v.  Hussey,  2  Ball  &  B.  280  ; 
Lawder  v.  Blachf.  Beat.  522.     See  also  Haywood  v.  Cope,  4  Jur.  X.  S.  227,  (M.R.) 

(/)  Hawkes  v.  Eastern  Counties  Railway  Company,  1  De  G.  M.  &  G.  737,  755  : 
S.  C.  5  Ho.  Lords,  331. 

(f/)  Nickles  v.  Hancock,  7  De  G.  M.  &  G.  300.     See  post,  ^  977,  979. 

(A)  Wood  V.  Griffiths,  1  Sw.  43.  (i)  3  Atky.  512  ;  S.  C.  1  Ves.  Sen.  12. 

[k)  Costlgan  v.  Hastier,  2  Sch.  &  Lef.  160. 


100      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  256.  Notwithstanding  these  cases  the  general  rule  seems  to  be,  that 
events  subsequent  to  the  contract,  and  not  so  involved  in  it  as  to  render 
it  unequal  at  the  time  it  is  entered  into,  cannot  be  brought  forward  to 
show  the  hardship  of  enforcing  it.  But  where  the  subsequent  events 
alleged  for  this  purpose  are  acts  of  the  plaintiif  himself,  or  events  in 
some  sense  within  his  power,  the  court  may  have  regard  to  them  in 
exercising  its  discretionary  jurisdiction  in  specific  performance.  There 
are  cases  in  which  the  court  has  considered  that,  by  means  of  these 
events,  such  a  change  has  taken  place  in  the  relative  position  of  the 
plaintiff  and  defendant,  as  to  render  it  inequitable  specifically  to  enforce 
the  contract  against  the  latter.  The  leading  case  on  this  head  is  The 
Duke  of  Bedford  v.  The  Trustees  of  the  British  Museum, (.?)  before  Lord 
Eldon  and  Sir  Thomas  Plumer.  The  Duke  of  Bedford  being  in  the  oc- 
cupation of  Southampton  House  (afterwards  called  Bedford  House)  as 
his  residence,  in  1675  conveyed  to  Mr.  Montagu  adjoining  land,  for  the 
purpose  of  his  erecting  on  it  a  mansion,  with  suitable  appendages  of 
gardens  and  offices ;  and  Mr.  Montagu  entered  into  covenants  with  the 
r*11Qn  ^^^^  ^^^  ^^  ^^^  ^^^  ^^'^'^  ^^  ^  particular  manner,  with  a  *view  to 
L  J  the  more  ample  enjoyment  by  the  duke  of  the  adjoining  lands. 
The  duke,  or  those  claiming  under  him,  subsequently  covered  these 
lands,  or  a  considerable  part  of  them,  with  houses,  and  Southampton 
House  was  pulled  down  to  make  way  for  streets  and  buildings.  On  a 
motion  for  an  injunction  to  restrain  the  defendants,  who  claimed  under 
Mr.  Montagu,  from  using  the  land  in  a  way  at  variance  with  the  cove- 
nants of  the  deed  of  1675,  Lord  Eldon  and  Sir  Thomas  Plumer  held 
that  the  duke  having  altered  the  state  of  the  property  in  the  way  he 
had,  it  would  be  inequitable,  unreasonable,  and  unjust,  thus  to  enforce 
the  covenants  specifically,  and  the  plaintiff  was  left  to  his  remedy  at " 
law.(??i)  And  so,  long  acquiescence  in  a  variation  from  the  mode  of  re- 
newal pointed  out  by  a  covenant  for  that  purpose  has  been  held  a  reason 
for  not  specifically  enforcing  the  covenant  in  its  original  terms. («) 

§  257.  It  would  seem,  that  in  considering  the  hardship  which  may 
flow  from  the  execution  of  an  agreement,  the  court  will  consider 
whether  it  is  a  result  obviously  flowing  from  the  terms  of  the  contract, 
so  that  it  must  have  been  present  at  the  time  of  the  contract  to  the 
minds  of  the  contracting  parties,  or  whether  it  arises  from  something- 
collateral,  and  so  far  concealed  and  latent,  as  that  it  might  not  have 
been  thus  present  to  their  minds. (o)  It  is  obvious  that  a  far  higher  de- 
gree of  hardship  must  be  present  in  the  former,  than  in  the  latter  class 
of  cases,  for  it  to  operate  on  the  discretion  of  the  court.  Thus,  in  a  case(p) 
where,  under  an  agreement,  the  issue  of  a  first  marriage  claimed  the 
whole  of  the  real  estates  of  their  father,  to  the  exclusion  of  the  issue  of 
a  second  marriage.  Lord  Eldon  said,((/)  speaking  of  the  hardship  which 
r*i9m  ^^^®  defendants  alleged  would  result  from  the  carrying  out  of  *this 
L         J  agreement,  that,  "  unless  hardship  arises  to  a  degree  of  incon- 

(Z)  2  My.  &  K.  552. 

(m)  See  per  Knight  Brnce,  L.  J.,  in  Shrewsbury  and  Birmingham  Railway  Com- 
pany V.  Stour  "Valley  Railroad  Company,  2  De  G.  M.  &  G.  882. 

(n)  Davis  v.  Hone,  2  Sch.  &  Lef.  341.  (o)  See  e.  g.  cases  stated,  §  261. 

Ip)  Preble  v.  Doghurst,  1  Sw.  309.  (q)  p.  329. 


HARDSHIP  OF  THE  CONTRACT.  101 

venience  and  absurdity,  so  great  that  the  court  can  judicially  say  such 
could  not  be  the  meaning  of  the  parties,  it  cannot  influence  the  decision." 
His  lordship's  remark,  no  doubt,  applied  to  cases  such  as  the  one  then 
before  him,  -where  the  question  being  one  of  the  construction  of  an  in- 
strument, hardship  is  used  as  an  argument,  to  show  that  a  particular 
construction  cannot  be  the  right  one ;  and  the  observations  therefore 
cannot,  it  seems,  be  applied  to  hardship,  when  used  to  influence  the  dis- 
cretion of  the  court  in  the  exercise  of  its  extraordinary  jurisdiction  in 
specific  performance. 

§  258.  The  cases  which  have  been  already  quoted  as  showing  that 
the  hardship  must  be  judged  of  at  the  time  of  the  contract,  also  illustrate 
another  obvious  principle,  namely,  that  where  the  hardship  has  been 
brought  upon  tlie  defendant  by  himself,  it  shall  not  be  allowed  to  furnish 
any  defence  against  the  specific  performance  of  the  contract,(r)  at  least 
whenever  the  thing  he  has  contracted  to  do  is  <'  reasonably  possible. "(s) 

§  259.  Nor  will  it  constitute  a  case  of  hardship  that  the  ultimate 
object  which  a  party  had  in  view  in  entering  into  a  contract  may  have 
become  impossible  :  the  mere  failure  of  the  purchaser's  speculation  will 
not  discharge  him  from  his  obligations  to  the  vendor.  Thus,  where  one 
person  contracted  with  another  for  the  purchase  of  a  piece  of  land  on 
which  he  intended  to  erect  a  mill,  for  which  the  consent  of  a  corporation 
was  requisite,  the  refusal  to  give  this  consent  furnished  no  defence  to 
the  purchaser,  although  he  had,  in  consequence  of  the  object  he  had  in 
view,  given  a  very  high  price  for  the  ground. (^) 

*§  260.  In  cases  against  companies,  the  court  will  not  con-  ^^^^-^^-. 
sider  the  hardships  which  may  result  to  the  individual  members  L  "  J 
from  enforcing  a  contract  made  by  the  whole  body;  ''for  it  cannot  re- 
cognize any  party  interested  in  the  corporation,  but  must  look  to  the 
rights  and  liabilities  of  the  corporation  itself  ;'Y?<)  and  though,  as  we 
have  seen,(D)  the  decision  of  the  case  in  which  this  language  was  used 
by  Lord  Cotteuham  has  recently  been  disapproved  of  in  the  house  of 
lords,  this  principle  seems  to  be  untouched,  and  to  rest  on  solid  reason- 
ing. 

§  2G1.  If  the  execution  of  the  contract  would  render  the  defendant 
liable  to  a  forfeiture,  the  court  will  regard  this  as  a  circumstance  of  hard- 
ship :  so  where  a  man  was  entitled  to  a  small  estate  under  his  father's 
will,  on  condition  that,  if  he  sold  it  within  twenty-five  years,  half  the 
purchase-money  should  go  to  a  brother :  the  owner  agreed  to  sell  it,  but 
Lord  Ilardwicke  held  that  the  hardship  was  sufiicient  to  determine  the 
court  not  to  interfere. (?r)   So  where  a  lessee  sold  certain  lots  of  building 

(r)  See  per  Lord  Hardwicke  in  Pembroke  v.  Thorpe,  3  Sw.  443,  n. 

(s)  Per  Knight  Bruce,  V.  C,  in  Storer  v.  Great  Western  Railway  Companv,  2  Y. 
&  C.  C.  C.  52. 

(t)  Adams  v.  Weare,  1  Bro.  G.  C.  567  ;  per  Turner,  V.  C,  in  Webb  v.  Direct 
London  and  Portsmouth  Raihvay  Company,  9  Ha.  140  ;  per  M.  R.  in  Lord  James 
Stuart  V.  London  and  North-western  Railway  Company,  15  Beav.  523,  and  cases 
ne.xt  cited. 

(m)  Per  Lord  Cottenham  in  Edwards  v.  Grand  Junction  Railway  Companj*.  1 
My.  &  Cr.  G74  ;  Hawkes  v.  Eastern  Counties  Railway  Company,  1  De  G.  M.  k  G. 
737,  754;  cf.  ante,  §  249. 

(v)  See  ante,  ^  145.  (w)  Faine  v.  Brown,  cited  2  Yes.  Sen.  307. 


102       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ground,  and  agreed  to  make  a  road,  wliicli  it  was  found  lie  could  not  do 
without  incurring  the  risk  of  forfeiting  a  piece  of  leasehold  land  through 
which  it  was  to  pass,  or  of  being  sued  by  the  lessor,  the  court,  granting 
the  purchaser  specific  performance  of  the  agreement  for  sale,  refused  to 
enforce  this  stipulation,  but  gave  him  compensation  for  the  non-perform- 
ance of  it.(x) 

§  262.  To  this  head  of  hardship,  we  may  perhaps  best  refer  the  cases 
which  establish  that,  where  the  vendor  is  liable  to  certain  covenants  and 
has  not  expressly  stipulated  *that  the  purchaser  shall  indemnify 
L  "^-1  him  against  them,  yet  so  soon  as  the  purchaser  has  notice  of 
them,  whether  by  the  particulars  of  sale(?/)  or  subsequently  to  the  con- 
tract/.:;) he  is  bound  to  elect  either  to  rescind  the  contract  or  to  execute 
an  indemnity  to  the  vendor :  for  otherwise  the  vendor  would  lose  his 
land  but  retain  his  liability  in  respect  of  it.  In  the  earlier  of  the  cases 
cited,  it  was  only  decided  that  the  purchaser,  as  plaintiff,  could  not  en- 
force specific  performance  without  entering  into  such  indemnity;  but  in 
the  latter,  that  the  vendor,  as  plaintifF,  might  put  the  purchaser  to  his 
election. 

§  263.  In  one  case  where  trustees  had  joined  their  cestuis  que  trust 
in  a  contract  for  sale,  and  had  personally  agreed  to  enonerate  the  estate 
from  the  encumbrances,  and  it  did  not  appear  whether  the  purchase- 
money  would  be  sufficient  to  discharge  them,  or  what  would  be  the  extent 
of  the  deficiency,  the  court  refused  specific  performance  on  the  ground 
of  hardship,  although  the  plaintiff"  had  had  possession  of  the  estate,  and 
could  not  be  deprived  of  the  benefit  of  his  contract  without  great  incon- 
venience.(a)  In  another  case  a  mortgagee  with  power  of  sale  had 
obtained  a  foreclosure  decree,  and,  intending  to  sell  as  absolute  owner, 
entered  into  a  contract  for  sale  to  the  plaintifF.  In  the  contract  there 
was  copied,  by  inadvertence,  from  conditions  of  sale  of  other  parts  of  the 
estate  drawn  up  sometime  before,  a  clause  stating  the  vendor  to  be  a 
mortgagee  with  power  of  sale :  the  vendor  offered  to  convey  as  owner 
under  the  foreclosure  decree,  but  the  purchaser  insisted  on  a  title  under 
the  power  of  sale;  but  the  court  held,  that  to  impose  on  the  vendor  the 
risk  of  opening  the  foreclosure  decree  by  such  a  sale,  was  a  hardship 
which  it  would  not  put  on  him,  and  accordingly  dismissed  the  bill  unless 
the  plaintiff  would  accept  the  conveyance  which  the  defendant 
L     "  -I  was  ready  to  execute.  (6) 

§  264.  But  where  a  tenant  for  life  had  agreed  to  grant  a  mining 
lease,  and  to  a  bill  by  the  intended  lessee  he  objected  that  he  was  only 
tenant  for  life,  and  that  he  could  not  grant  the  lease  in  question  under 
his  power,  and  that  he  should  be  accountable  for  waste,  Lord  Nottingham 
appears  to  have  considered  this  to  be  no  defence,  and  he  decreed  the 
defendant  to  carry  out  the  contract  so  far  as  he  was  capable  of  doing.(c) 

§  265.  In  one  case  Lord  Hardwicke,  on  the  ground  of  hardship,  re- 

(x)  Peacock  v.  Penson,  11  Beav.  355. 

(y)  Mcxhay  v.  Indcnvick,  1  De  G.  &  Sra.  708. 

(z)  Lukey  v.  Higgs,  24  L.  J.  Ch.  495,  (Kindcrsley,  Y.  C.) 

(a)  Wedgwood  v.  Adams,  6  Beav.  GOO. 

(h)  Watson  v.  Marstuu,  4  De  G.  M.  &  G.  230. 

(r)  Cleaton  v.  Gower,  Finch,  164;  but  see  the  cases  stated  ante,  g  245  et  seq. 


UARDSniP  OF  THE  CONTRACT.  103 

fused  specific  performance  of  a  covenant  to  leave  buildings  in  repair  con- 
tained in  an  ecclesiastical  lease,  the  fact  of  the  description  of  the  build- 
ings being  continued  from  lease  to  lease,  without  variation,  showing  that 
the  buildings  in  question  might  not  have  been  in  being  at  the  time  of 
the  making  of  the  lease. ((Zj 

§  2GG.  And  where  a  lessee  of  mines  covenanted  that  if  at  any  time 
before  the  expiration  of  the  lease,  the  lessor  should  give  notice  of  his 
desire  to  take  the  machinery  and  stock  about  the  mines,  the  lessee  would 
at  the  expiration  of  the  lease  deliver  the  articles  specified  in  the  notice 
to  the  lessor,  on  his  paying  the  value,  to  be  ascertained  by  valuation,  the 
court  held  the  covenant  thus  framed  to  be  so  injurious  and  oppressive  to 
the  lessee,  that  it  refused  specific  performance,  and  would  not  interfere 
to  prevent  a  breach  by  injunction. (e) 

§  267.  Where  A.,  in  consideration  of  B.'s  not  joining  in  barring  an 
entail,  agreed  to  convey  to  him,  his  heirs  or  assigns,  the  fee  of  such  parts 
of  the  estates,  which  were  situated  in  three  counties,  as  he  or  they  should 
choose,  to  the  yearly  value  of  £200  :  the  inconvenience  and  hardship  to 
which  such  an  option  might  expose  the  party  who  had  *granted  r*i9i-] 
it,  was  one  ground  on  which  specific  performance  was  refused  by  ^  "J 
the  house  of  lords. (/)  In  another  case  the  court  refused  to  enforce  an 
agreement  for  service  by  which  a  young  man  placed  himself  almost 
entirely  in  the  power  of  certain  great  traders,  by  whom  he  was  employed 
as  traveller  and  clerk. f^) 

§  268.  Where  a  contract,  if  enforced,  would  make  a  man  buy  what 
he  could  not  enjoy,  the  court  will  refuse  to  interfere  on  the  ground  of 
hardship,  as  in  the  case  of  a  contract  to  sell  a  piece  of  land  to  which  no 
way  could  be  shown,  the  contract  itself  being  silent  as  to  any  right  of 
way.(7i) 

§  269.  The  principle  applies  equally  to  contracts  between  companies 
as  to  those  between  private  individuals ;  and  therefore,  where  the  result 
of  such  a  contract  was  to  divert  from  its  legitimate  channel  a  consider- 
able portion  of  the  profits  of  one  part  of  the  line  of  one 'company  for  the 
benefit  of  the  other,  without  securing  any  corresponding  portion  of  profits 
of  the  other  line,  the  court  refused  to  interfere  by  way  of  specific  per- 
formance, irrespective  of  the  consideration  whether  such  contracts  were 
legally  binding  or  not.(t) 


§  270.  One  considerable  class  of  cases  in  which  the  court  has  refused 
to  grant  specific  performance  on  the  score  of  unfairness  and  hardship, 
arises  on  contracts  for  the  sale  of  reversionary  interests.  The  court, 
considering  that  a  man  possessed  only  of  a  future  interest  sells  at  a  dis- 
advantage, has  always  refused  specific  performance  of  contracts  by  heirs 

(rf)  Dean  of  Ely  v.  Stewart,  2  Atky.  44.  (e)  Talbot  v.  Ford,  13  Sim.  173. 

(/)   Hamilton  v.  Grant,  3  Dow,  33,  47. 

((/)  Kiniberlcy  v.  Jennings,  6  Sim.  340 ;  this  case  has  been  overruled,  but  on 
another  point,  by  Lumley  v.  Wagner,  1  De  G.  M.  &  G.  604. 

(/i)  Denne  v.  Light,  20  L.  J.  Ch.  459 ;  S.  C.  3  Jur.  N.  S.  G27,  (L.  J.  J.) 

(«')  Shrewsbury  and  Birmingham  Railway  Company  v.  London  and  Xorth-west- 
cra  Railway  Company,  4  Dc  G.  M.  &  G.  115  ;  S.  C.  6  Ho.  Lords,  113. 


lOi       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

for  the  sale  of  such  estates  at  an  under-value  :(/i-)  and  moreover  has  thrown 
r*T?"n  ^^^  ^'^"^  ^^  proving  that  *the  transaction  was  for  a  full  considera- 
L  -'  J  tion,  and  in  all  respects  fair,  on  the  purchaser  asking  for  the  as- 
sistance of  the  court.  (?) 

§  271.  The  principle  on  which  the  court  acts  in  these  cases  beingthat 
a  man  possessed  only  of  a  future  interest  sells  at  a  disadvantage,  it  will 
not  apply  where  the  tenant  for  life  and  the  reversioner  concur,  as  they 
together  ''form  a  vendor  with  a  present  interest  ;"(m)  and  so  where  a 
vendor  had  a  rent  charge  of  £500  in  possession  and  an  estate  in  rever- 
sion, and  he  sold  a  perpetual  rent  charge  of  £500,  he  was  not  considered 
as  within  the  principle  now  under  consideration,  he  having  it  in  his 
power  to  secure  a  perpetual  rent  charge  of  that  amount  in  possession. (/i) 

§  272.  The  mere  fact  however  that  some  interest  in  possession  is  sold 
together  with  the  reversion,  will  not,  at  least  where  that  is  not  consider- 
able, take  the  case  out  of  the  rule  ■Jo'\  as  for  instance,  where  an  annuity 
in  possession  was  sold  together  with  the  reversion,  the  estimated  value 
of  the  annuity  being  only  about  one-sixth  of  that  of  the  reversion. Q?) 

§  273.  Again,  the  principle  will  not  apply  where  the  reversionary 
interest  has  been  sold  by  auction  ;(j)  and  this  for  two  reasons.  For  first 
'■'there  being  no  treaty  between  vendor  and  purchaser,  there  can  be  no 
opportunity  for  fraud  or  imposition  on  the  part  of  the  purchaser.  The 
vendor  is  in  no  sense  in  the  power  of  the  purchaser.'Vr)  Secondly,  it 
being  now  clearly  established  that  the  market  price  of  the  reversionary 
interest,  and  not  the  estimate  of  actuaries,  is  the  criterion  by  which  the 
court  will  decide  the  question  of  undervalue  ;M  and  a  sale  by  auction 
r*'9n  ^6'^g  *^  mode  of  ascertaining  that  market  price,  it  follows  that 
L  J  the  consideration  of  the  transaction  and  the  value  in  the  eye  of 
the  court  must  in  such  cases  be  one  and  the  same,  and  that,  in  the 
absence  of  fraud,  no  question  of  undervalue  can  arise. 

§  274.  The  principles  of  the  court  in  respect  of  sales  of  reversionary 
interests  have  been  very  extensively  discussed  in  suits  for  the  rescission 
of  such  sales  :  I  shall  not  here  enter  at  any  further  length  upon  them, 
but  it  remains  only  to  remark,  that  whatever  circumstances  have  been 
held  to  justify  the  rescission  of  such  sales  when  executed,  will  a  fortiori 
furnish  a  vendor  placed  in  the  position  of  defence  with  a  ground  for  re- 
sisting the  execution  of  a  contract  resting  in  fieri. 

{k)  Playford  v.  Playford,  4  Ha.  546. 

[l)  Kendall  v.  Beckett,  2  R.  &  M.  88 ;  Hiacksman  v.  Smith,  3  Russ.  433. 

hn)  Wood  V.  Abrey,  3  Mad.  41'7.  {n)  Wardle  v.  Carter,  7  Sim.  490. 

(o)  Per  Lord  Eldon  in  Davis  v.  Duke  of  Marlborough,  2  Sw.  154. 

(p)  Earl  of  Portmore  v.  Taylor,  4  Sim.  182. 

{q)  Shelly  v.  Nash,  3  Mad.  232.  (r)  Per  Sir  J.  Leach,  id.  236. 

(s)  Wardle  v.  Carter,  7  Sim.  490  ;  per  Wigram,  V.  C,  in  Barell  v.  Dann,  2  Ha. 
452  ;  Earl  of  Aldborough  v.  Trye,  T  CI.  &  Fin.  436,  particularly  460  ;  Edwards  v. 
Burt,  2  De  G.  M.  &  G.  55. 


INADEQUACY    OF    THE    C  0  X  SI  D  E  R  AT  I  0  N.  105 

*CHAPTP]rt   YII.  [*r27] 

OF  INADEQUACY   OF    THE   CONSIDERATION. 

§  275.  We  now  proceed  to  inquire  how  far  the  inadequacy  of  the  con- 
sideration for  a  contract  may  furnish  a  defence  against  its, specific  per- 
formance. The  inadequacy  may,  it  is  evident,  in  contracts  for  sale  be 
either  on  the  side  of  the  vendor  or  of  the  purchaser ;  either  in  the  pur- 
cliase-money  or  in  the  thing  sold :  or  again  in  other  cases,  it  may  con- 
sist in  the  inequality  of  the  contingencies  to  which  the  contract  has  re- 
ference.(a) 

§  276.  It  has  been  justly  remarked  that  there  is  a  great  difi'erence 
between  the  defence  grounded  on  the  inadequacy  of  purchase  money  set 
up  by  the  vendor, ^ind  on  the  excess  of  it  set  up  by  the  purchaser;  for 
whilst  the  court  can  ascertain  the  former  by  a  reference  to  the  general 
market  value  of  such  property,  it  has  no  satisfactory  means  of  determin- 
ing what  represents  the  money  value  to  a  specified  individual  of  a  specified 
estate. (/y) 

§  277.  There  is  no  doubt  that  inadequacy  of  consideration  when  com- 
bined with  any  case  of  fraud,  misrepresentation,  studied  suppression  of 
the  true  value  of  the  property,(c)  or  with  any  circumstances  of  oppres- 
sion, or  even  of  ignorance, (f/)  is  a  most  material  ingredient  in  the  case, 
as  affecting  the  discretion  of  the  court  in  granting  specific  *per-  r:j;-i  .^o-i 
formance  ;  and  further  it  may  materially  concur  in  constituting  a  L  "'"J 
case  for  setting  aside  a  transaction.  Thus  in  Cockell  v.  Taylor,(e)  the 
present  master  of  the  rolls  set  aside  an  alleged  sale  of  land  to  the  plain- 
tiff, where  the  consideration  was  about  ten  times  the  value  of  the  land, — 
the  purchase  having  been  made  the  condition  of  a  loan  which  the  plain- 
tiff was  very  anxious  to  negotiate  in  order  to  prosecute  his  claim  in  chan- 
cery to  some  valuable  property,  and  he  being  in  humble  circumstances 
and  illiterate.  "  Coupled  with  such  circumstances,'^  said  Sir  John 
Homily,  <'  the  evidence  of  over-price  is  of  great  weight,  and  if  the  case 
had  stood  here  I  should  have  been  of  opinion  that  this  transaction  was 
one  which  could  not  stand. '7/)  It  may  also  concur  with  other  circumstan- 
ces to  show  that  the  transaction  was  in  the  nature  of  a  gift,  and  not  of  a 
contract  for  sale,  in  respect  of  which  therefore  the  court  would  not  inter- 
fere, as  it  docs  not  decree  the  specific  performance  of  incomplete  gifts. (r/) 

§  278.  The  question  however  which  has  been  principally  discussed  is 
the  efi"ect  on  contracts  of  the  inadequacy  of  consideration  taken  by  itself 
and  abstracted  from  all  other  circumstances. 

§  279.  With  regard  to  it  as  a  ground  for  the  setting  aside  of  transac- 
tions, the  doctrine  of  the  court  is  that  inadequacy  of  consideration,  if 
only  amounting  to  hardship  or  even  great  hardship,  is  no  ground  for  re- 
lieving a  man  «  from  a  contract  which  he  has  wittingly  and  willingly 

(a)  Hamilton  v.  Grant,  3  Dow,  33.  (i)  Dart,  Vend.  578. 

(c)  Deane  v.  Rastron,  1  Ans.  64. 

{(i)  Young  v.  Clarke,  Prec.  Ch.  538;  Lewis  v.  Lord  Lechmere,  10  Mod.  503. 

(e)  15  Beav.  103.  (/)  p.  115. 

(ff)  Callaghan  v.  Callaghan,  8  CI.  &  Fin.  374. 


106      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

entered  into ;"(/')  but  that  it  may  be  so  enormously  great  as  to  be  a  con- 
clusive evidence  of  fraud,  and  that  it  is  then  a  ground  for  setting  aside 
the  transaction  aifected  by  it.(/) 

§  280.  Regarded  as  a  ground  of  defence  to  a  specific  performance,  the 
r*i9Qn  <^octrine  of  the  older  cases  was  that  it  was  *suflScient,  it  being  re- 
L  "^  -I  garded,  even  where  not  amounting  to  evidence  of  fraud,  as  a  cir- 
cumstance of  hardship  which  would  stay  the  interposition  of  the  court. 
Thus,  in  a  case,(7.;)  before  Chief  Baron  Eyre,  that  judge  laid  it  down  that, 
independently  of  all  consideration  of  fraud,  "the  court  upon  the  mere 
consideration  of  its  being  so  hard  a  bargain  will  not  enforce  it."  So,  in 
a  casef/)  where  there  was  an  agreement  between  two  men  sui  Juris  for 
the  sale  of  an  estate  worth  £10,000  for  £6000  down  and  £14,000  more, 
payable  at  the  death  of  a  man  aged  sixty-four  or  sixty-five  and  there  were 
no  circumstances  of  pressure  or  circumvention,  Lord  Alvanley  refused,  on 
a  cross-bill,  to  set  aside  the  agreement;  but  he  also  refused  specific  per- 
formance of  it  on  the  ground  of  its  being  a  hard  bargain.  And  in  an 
earlier  case,  where  a  purchaser  had,  during  the  South  Sea  mania,  pur- 
chased a  house  fi'om  the  court  for  £10,500,  and  paid  a  deposit  of  £1000, 
the  purchaser  was  discharged  by  Lord  Macclesfield,  on  forfeiting  his  de- 
posit, on  the  ground  of  the  general  delusion  which  the  nation  was  under 
at  the  time  of  the  contract,  and  the  imaginary  values  then  put  by  people 
on  estates,  and  this  in  spite  of  a  most  able  argument  by  Lord  Notting- 
ham who  argued  on  behalf  of  his  granddaughters,  the  plaintiffs. (m) 

§  281.  But  it  seems  now  to  be  established  by  the  decisions  of  Lord 
Eldon  and  Sir  William  Grant,  that  mere  inadequacy  of  consideration  is 
no  defence  to  specific  performance,  unless  it  amount  to  an  evidence  of 
fraud,  and  so  would  furnish  a  ground  even  for  cancelling  the  contract,  (n) 
"Unless  the  inadequacy  of  price,"  said  Lord  Eldon  in  one  case,(o)  "is 
such  as  shocks  the  conscience  and  amounts  in  itself  to  conclusive  and 
^  ^  decisive  evidence  of  fraud  in  the  ^transaction,  it  is  not  itself  a 
L  J  sufllicient  ground  for  refusing  a  specific  performance."  And  in 
an  earlier  case,(p)  where  a  sale  by  auction  having  taken  place  for  about 
half  the  value  of  the  estate,  Lord  Rosslyn  had  refused  specific  perform- 
ance, but  Lord  Eldon,  on  a  re-hearing,  although  he  ultimately  decided 
the  case  on  a  question  of  evidence,  doubted  the  principle  of  the  decree, 
and  expressed  an  opinion  that  a  sale  by  auction  could  not  be  set  aside 
for  mere  inadequacy  of  price.  His  lordship  also  applied  the  same  prin- 
ciple in  the  instance  of  an  annuity  transaction. (5)  The  doctrine  was 
adopted  by  Sir  William  Grant  and  Lord  Erskine,  and  is  now  the  well- 
established  principle  of  the  court,  (r)     A  recent  illustration  of  it  may  be 

(h)  Griffith  V.  Spraltey,  1  Cox,  383,  388,  389 ;  Fox  v.  Mackreth,  2  Dick.  683. 
(?)  S.  C.  Stilwell  V.  Wilkins,  Jac.  280. 

(^f)  Tilly  V.  Peers,  cited  by  Sir  S.  Romilly,  arg.  10  Yes.  301. 
(l)  Day  V.  Newman,  2  Cox,  77  ;  S.  C.  cited  by  Sir  S.  Romilly,  arg.  10  Ves.  300. 
(to)  Savile  v.  Savile,  1  P.  Wms.  745;  S.  C.  5  Vin.  Abr.  51G,  pi.  25. 
(«)  Per  Lord  Eldon  in  Stilwell  v.  Wilkins,  Jac.  282. 

(0)  In  Coles  V.  Trecothick,  9  Ves.  246.  (;')  White  v.  Damon,  7  Ves.  30. 

(q)  Underbill  v.  Ilorwood,  10  \^es.  209. 

(r)  Burrowes  v.  Lock,  10  Yes.  470;  per  Lord  Erskine  in  Lowther  v.  Lowther, 
13  Ves.  103  ;  Collier  v.  Brown,  1  Co.x,  428  :  Bower  v.  Cooper,  2  Ha.  408  ;  Borell 


INADEQUACY    OF    THE    CONSIDERATION.  107 

found  iu  the  case  of  Abbott  v.  Sworder,(s)  where  an  estate  was  bought 
for  £5000,  the  value  of  which  was  cousidered  by  the  Vice-Chancellor 
Knight  Bruce,  to  be  £3,500 ;  but  this  inadequacy  of  consideration  was 
hehi,  both  by  liim  and  by  Lord  8t.  Leonards,  to  be  no  bar  to  specific 
performance,  which  was  accordingly  decreed  at  the  suit  of  the  vendor. 

§  282.  It  being  established  by  other  cases  that,  in  a  general  way,  the 
hardship  of  a  bargain  is,  independently  of  fraud,  a  ground  for  refusing 
its  specific  execution ;  and  it  being  evident  that  the  inadequacy  of  con- 
sideration, even  where  not  amounting  to  evidence  of  fraud,  may  yet 
amount  to  evidence  of  such  hardship,  the  reason  of  the  rule  above  stated 
is  not  at  first  sight  obvious.  It  is  probably,  however,  to  be  sought  for 
in  the  extreme  difficulty  of  measuring  such  hardship,  the  relation  of  the 
two  values  being  one  capable  of  an  infinite  gradation, — in  the  great  va- 
riety of  *feelings  and  motives  by  which  men  are  actuated  in  their  r:,:-|qi-i 
contracts,  and  in  the  corresponding  variety  of  opinions  which  may  L  J 
be  formed  as  to  the  inadequacy  of  the  consideration  of  these  contracts, 
except  in  those  extreme  cases  where  it  is  said  to  shock  the  conscience, 
and  so  to  be  in  itself  a  badge  and  evidence  of  fraud. 

§  283.  Ey  the  Roman  law,  these  difficulties  in  the  way  of  relieving 
against  inadequacy  of  consideration  in  certain  cases  were  overcome,  at 
least  as  to  immovable  property,  by  the  fixing  of  the  arbitrary  standard 
of  half  the  real  price  as  that  which  would  give  the  sufferer  a  right  to  the 
interference  of  the  law  :  when  the  price  paid  did  not  amount  to  half  the 
real  value  of  the  thing  sold,  the  vendor  might  put  the  purchaser  to  his 
election,  either  to  take  back  the  purchase-money  and  restore  the  thing 
sold,  or  to  keep  the  thing,  and  make  up  the  deficiency  in  the  purchase- 
money.(^)  The  French  law  adopted  the  same  principle,  except  in  the 
case  of  sales  between  co-heirs  and  co-proprietors,  where  a  defect  of  one 
quarter  of  the  price  had  the  same  effect  as  a  like  defect  of  one-half  in 
other  cases. (i/)  A  wish  has  been  expressed  that  the  same  principle  had 
been  adopted  by  the  law  of  this  country. (v) 

§  284.  The  question  of  the  inadequacy  of  the  consideration  must  of 
course  be  decided  at  the  time  of  the  contract,  and  not  by  the  light  of 
subsequent  events.  It  is  true  that,  in  a  case(tt)  already  stated,  the  cir- 
cumstance of  the  contract  having  been  made  during  the  excitement 
caused  by  the  South  .Sea  scheme,  was  allowed  as  a  reason  why  the  court 
relieved  a  purchaser  from  the  performance  of  his  contract ;  but  the  case 
is  one  which  cannot  now  be  considered  as  law,  and  the  principle  involved 
seems  unjust.  It  is  now  ^therefore  well  established  that  the  time  p^,  ^.^-i 
of  the  contract  is  the  time  for  judging  of  its  consideration  :  thus,  L  "J 
to  give  one  example, — where  an  annuity  for  life  forms  part  of  the  con- 

V.  Dann,  2  Ha.  430.  See  also  Griffith  v.  Spraltcj,  2  Bro.  C.  C.  1T9;  S.  C.  1  Cox, 
383;  Stephens  V.  Hotham,  1  K.  &  J.  571. 

(«)  4  De  G.  &  Sm.  448.  (t)  Cod.  lib.  iv.  tit.  44,  2. 

(ii)  Pothier,  Tr.  de.s  Oblig.  p.  i.  ch.  i.  s.  1,  art.  3,  g  4. 

(v)  Xott  V.  Hill,  2  Cas.  iu  Ch.  120. 

{w}  Savile  v.  Savile,  ante,  §  280.  See  Kien  v.  Stukcley,  1  Bro.  P.  C.  191,  where 
the  same  ground  was  urged ;  but  according  to  the  report  in  Gilbert,  the  case  was 
decided  on  another  point. 


108       TRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

sideration,  and  tlic  life  drops  before  any  payment  is  made,  this  does  not 
render  the  consideration  necessarily  inadequate,  (x) 

§  285.  The  question  of  inadequacy  of  consideration  in  cases  of  sales 
of  reversionary  interests  is  governed  by  principles  peculiar  to  those 
cases  :  the  proof  of  adequacy  being  thrown  on  the  purchaser,  and  not 
that  of  inadequacy  on  the  vendor.  The  subject  is  briefly  referred  to 
elsewhere,  (y) 


[*133]  *CH AFTER    VIII. 

or    WANT    OF    MUTUALITY   IN    THE    CONTRACT. 

§  286.  A  CONTRACT,  to  be  specifically  enforced  by  the  court,  must  be 
mutual, — that  is  to  say,  such  that  it  might,  at  the  time  it  was  entered 
into,  have  been  enforced  by  either  of  the  parties  against  the  other  of 
them.  Whenever,  therefore,  whether  from  personal  incapacity,  the  na- 
ture of  the  contract,  or  any  other  cause,  the  contract  is  incapable  of  being 
enforced  against  one  party,  that  party  is  equally  incapable  of  enforcing 
it  against  the  other,  though  its  execution  in  the  latter  way  might  in  itself 
be  free  from  the  difficulty,  attending  its  execution  in  the  former. 

§  287.  Thus,  a  tenant  in  tail  cannot  enforce  an  agreement  entered 
into  by  a  tenant  for  life,  because  the  tenant  in  tail  could  not  be  sued  on 
that  agreement  :(a)  an  infant  cannot  sue,  because  he  could  not  be  sued, 
for  a  specific  performance  ?(h)  a  purchaser  from  a  person  who  at  the  time 
of  the  sale  had  no  estate  in  the  property  sold,  may  defend  himself  on  the 
score  of  the  vendor's  original  incapacity  to  perform  his  part  :(t')  and  where 
A.  agreed  with  B.  not  to  *join  in  barring  an  entail,  and  B.  agreed 
L  -I  to  convey  to  A.  certain  parts  of  the  estate  on  his  entering  into 
possession,  and  it  was  held,  on  the  authority  of  Collins  v.  Plummer,(f?) 
that  such  an  agreement  could  not  be  specifically  enforced  against  A.,  a 
specific  performance  of  B.'s  part  of  the  agreement  was  refused  at  the 
suit  of  A.'s  representatives.(c)  So  where  the  relief  sought  was  analogous 
to  the  specific  performance  of  a  grant  of  an  office,  the  court  held  that, 
the  duties  and  services  incident  to  the  office  being  personal  and  confiden- 
tial in  their  character,  specific  performance  could  not  have  been  decreed 
against  the  plaintiff"  at  the  suit  of  the  defendant ;  and  consequently,  that 
the  plaintiff"  could  not  sue  the  defendant,  though  there  was  no  personal 
duties  to  be  performed  by  the  defendant. (/)     And  so  where  the  plain- 

(x)  Mortimer  v.  Capper,  1  Bro.  C.  C.  156.  (y)  Ante,  §  270. 

(a)  Armiger  v.  Clarke,  Bunb.  Ill;  Ricketts  v.  Bell,  1  De  G.  &  Sm.  335. 

(b)  Flight  V.  Bolland,  4  Russ.  298.  The  case  of  Clayton  v.  Ashdown,  9  Vin. 
Abr.  393,  may  perhaps  be  explained  on  the  ground  of  a  ratification  by  the  infant 
after  attaining  his  majority,  or  as  being  an  application  in  equity  of  the  legal  prin- 
ciple that  the  contract,  though  voidable  by  the  infant,  binds  the  party  of  full  age. 
The  infant  cannot  recover  a  deposit  paid  on  the  contract,  except  on  the  ground  of 
fraud.     Wilson  v.  Kearse,  Peake,  Add.  Cas.  196. 

(c)  Hoggart  v.  Scott,  1  R.  &  My.  293.  (d)   1  P.  Wms.  104. 
(c)  Hamilton  v.  Grant,  3  Dow,  33. 

(/)  Pickering  v.  Bishop  of  Ely,  2  Y.  &  C.  C.  C.  249. 


WANT    OF    MUTUALITY    IN    THE    CONTRACT.  IQQ 

tiffs  had  atrreed  to  perforin  certain  services  iu  working  a  railway,  which 
were  of  such  a  confidential  nature  tliat  the  court  could  not  have  enforced 
them  if  the  defendants  had  sued  the  plaintiffs, — and  the  defendants  were 
to  pay  money,  and  do  nothing  else ;  the  court  refused  specific  perform- 
ance, on  the  ground,  amongst  others,  of  want  of  mutuality,  (r/) 

§  288.  A  doubt  was  at  one  time  entertained  whether  there  existed  the 
proper  mutuality  between  a  person  having  entered  into  a  contract  to  take 
a  lease  from  a  tenant  for  life,  with  a  leasing  power  and  the  remainder- 
man :(/t)  but  that  *doubt  is  now  resolved,  and  it  seems  clear  that  j-^^^,..-. 
such  a  contract  may  be  enforced  by  either  of  the  parties  to  it.('')  •-     ^  ^ 

§  289.  The  mutuality  of  a  contract  is,  as  we  have  seen,  to  be  judged 
of  at  the  time  it  is  entered  into ;  so  that  it  is  no  objection  to  the  plain- 
tiff's right,  that  the  defendant  may  by  delay,  or  other  conduct  on  his 
part  subsequent  to  the  contract,  have  lost  his  right  against  the  plaintiff.(/r) 
And  accordingly  it  has  been  held  to  be  no  defence  on  the  part  of  a  rail- 
way company,  for  them  to  show  that  they  had  after  the  contract  suffered 
the  time  during  which,  by  their  statutory  powers,  they  could  purchase 
the  lands  to  expire  :(l)  if  such  a  defence  were  sustained,  it  would  be  to 
allow  defendants  to  take  advantage  of  their  own  neglect. 

§  290.  The  exceptions  and  limitations  to  the  doctrine  of  mutuality 
may  now  be  considered. 

§  291.  (1)  The  contract  may  be  of  such  a  nature  as  to  give  a  right  to 
the  performance  to  the  one  party  Avhich  it  does  not  give  to  the  other, — 
as  for  instance,  where  a  lessor  covenants  to  renew  upon  the  request  of 
his  lessee  :(w)  or  where  the  agreement  is  in  the  nature  of  an  undertak- 
ing.(?()  But  the  more  accurate  view  of  such  cases  as  the  first,  perhaps 
of  all  that  could  be  treated  as  wanting  mutuality,  seems  to  be  that  they 
are  conditional  contracts :  and  when  the  condition  has  been  made  abso- 
lute, as  for  instance,  in  the  case  above  stated,  by  a  request  to  renew, 
they  would  seem  to  be  mutual  and  capable  of  enforcement  by  either 
party  alike. 

§  292.  In  cases  arising  out  of  such  contracts,  the  court  *will  i-.;<io/.-, 
exercise  its  discretion  as  to  specific  performance  with  great  care,  L     ^  J 

(ff)  Johnson  v.  Shrewsbury  and  Birmingham  Railvray  Company,  3  De  G.  M.  & 
G.  914  ;  Stocker  v.  Wedderburn,  3  K.  &  J.  393  ;  Ord  v.  Johnston,  1  Jur.  N.  S.  1063, 
(Stuart,  V.  C.)  See  also  Hill  v.  Gomme,  1  Beav.  540 ;  Bromley  y.  JefFeries,  2 
Vern.  415,  sed  qu.  ;  but  see  per  Sir  J.  Romilly  in  Hope  y.  Hope,  22  Beav.  364;  also 
S.  C.  before  L.  J.  J.  26  L.  J.  Ch.  417  ;  Vansittart  y.  Vansittart,  4  K.  &  J.  62.  It 
has  been  decided  in  Ireland  that  a  contract  by  a  purchaser  with  a  husband  and 
wife  is  not  bad  for  want  of  mutuality,  and  may  be  enforced  by  them.  Fenelly  v. 
Anderson,  1  Ir.  Ch.  R.  706.  The  grounds  of  this  decision  do  not  appear  very  con- 
clusive. 

(h)  Per  De  Grey,  C.  J.,  in  Campbell  v.  Leach,  Ambl.  749. 

(i)  Shannon  v.  Bradstreet,  1  Sch.  &  Lef.  52,  particularly  64. 

(k)  South-eastern  Railway  Company  v.  Knott,  10  Ha.  122. 

(/)  Ilawkes  v.  Eastern  Counties  Railway  Company,  1  De  G.  M.  k  G.  737,  755; 
S.  C.  5  Ho.  Lords,  331,  365.  The  observations  of  Lord  Cranworth  in  Stuart  y. 
London  and  North-western  Railway  Company,  1  De  G.  M.  &  G.  721,  to  the  con- 
trary, may  probably  be  taken  to  be  overruled  by  his  lordship's  concurrence  in 
Hawkes's  case  in  the  house  of  lords. 

(m)  Chesterman  v.  Mann,  9  Ha.  206.  See  Bell  v.  Howard,  9  Mod.  302,  304 
See  ante,  §  186. 

(n)  Palmer  v.  Scott,  1  R.  &  My.  391. 

November,  1858. — 8 


liO       FRY    OX    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

and,  it  seems,  view,  even  somewhat  narrowly,  the  conduct  of  the  party 
claiming  the  benefit  of  his  unilateral  right  to  enforce  the  contract. fo) 

§  293.  (2)  Mutuality  may  be  waived  by  the  subsequent  conduct  of  the 
person  against  whom  the  contract  could  not  originally  have  been  enforced  : 
thus,  where  a  purchaser  contracts  for  an  estate  with  a  person  having  no 
title,  or  not  such  as  he  affects  to  sell,  and  the  contract  therefore  is  not 
mutual,  for  want  of  interest  in  the  vendor ;  yet  if  the  purchaser  investi- 
gate the  title,  and  make  requisitions,  or  concur  in  proceedings  for  the 
purpose  of  remedying  the  defect,  he  is  afterwards  precluded  from  setting 
up  the  original  want  of  mutuality  in  the  contract. (/j) 

§  294.  And  so  where,  from  the  relation  of  the  parties  to  one  another, 
the  contract  is  originally  binding  on  the  one  and  not  on  the  other,  the 
latter  may  by  suit  waive  that  want  of  mutuality,  and  enforce  the  specific 
performance  of  the  contract;  as  in  the  case  of  a  suit  by  a  cestui  que 
trust  against  his  trustee  for  the  performance  of  a  contract  for  sale,  such 
a  contract  being  originally  binding  on  the  trustee,  and  not  on  the  bene- 
ficiary, (g')  The  case  of  a  contract  for  sale  by  a  voluntary  settlor  is  simi- 
lar, for  though  he  is  incapable  of  enforcing  the  contract  on  the  pur- 
ehaser,(r)  the  purchaser  may  waive  the  want  of  mutuality  and  enforce 
it  on  him.(s) 

§  295.  (3)  Another  exception  to  the  principle  in  question  is  afforded 
by  the  doctrine  which  was  established  very  soon  after  the  passing  of  the 
Statute  of  Frauds,  that  in  case  of  agreements  which  by  that  statute  are 
required  to  be  in  writing,  a  party  who  has  not  signed  the  agreement  may 
enforce  it  against  one  who  has.(i!) 

r*iQ7n  *§  •^^^"  ^^  ^^^^  been  alleged  in  support  of  this  doctrine,  in 
L  '  -I  the  first  place,  that  the  statute  only  requires  the  agreement  to 
be  signed  by  the  party  to  be  charged  therewith,  or  his  agent,  and  is 
silent  as  to  the  signature  of  the  other  party. («)  But  this  reasoning 
.seems  inconclusive,  because  the  doctrine  of  mutuality  is  over  and  above, 
and  quite  independent  of,  the  Statute  of  Frauds :  that  statute  may  be 
satisfied,  and  the  doctrine  in  question  remain  unsatisfied. (i)] 

§  297.  A  more  satisfactory  reason  which  has  been  alleged  is  that,  by 
filing  the  bill,  the  plaintiff  has  waived  the  original  want  of  mutuality, 
and  rendered  the  remedy  mutual. (u') 

§  298.  On  the  same  grounds,  an  agreement  contained  in  a  deed-poll 

(o)  Ohesterman  v.  Mann,  ubi  sup. 

(p)  Salisbury  v.  Hatcher,  2  Y.  &  C.  C.  C.  54 ;  Hoggart  v.  Scott,  1  R.  &  My.  293. 

(q)  Ex  parte  Lacey,  6  Ves.  625. 

(r)  Smith  v.  Garland,  2  Mer.  123  ;  Johnson  v.  Legard,  T.  &  R.  281. 

(s)  Buckle  V.  Mitchell,  18  Ves.  100. 

{t)  Hatton  V.  Grey,  5  Vin.  Abr.  525,  pi.  4,  in  36  Car.  ii. ;  S.  C.  2  Cas.  in  Ch.  164  ; 
Buckhouse  v.  Crosby,  2  Eq.  Cas.  Abr.  32,  pi.  44 ;  and  see,  as  to  the  nature  of  the 
interest  in  the  party  who  has  not  signed,  Morgan  v.  Holford,  1  Sm.  &  Gif.  101  ; 
and  see  post,  §  346. 

(ic)  Coleman  v.  Upcot,  5  Vin.  Abr.  527,  pi.  17  ;  Child  v.  Comber,  3  Sw.  423,  n.; 
Backhouse  v.  Mohun,  id.  434,  n. ;  Seton  v.  Slade,  7  Ves.  265;  Lord  Ormond  v. 
Anderson,  2  Ball  &  B.  363. 

(v)  See  per  Sir  J.  Leach  in  Boys  v.  Ayerst,  6  Mad.  323. 

(w)  Child  V.  Comber,  Seton  v.  Slade,  ubi  supra ;  Fowie  v.  Freeman,  9  Ves.  351  ; 
per  Sir  W.  Grant  in  Western  v.  Russell,  3  V.  &  B.  192  ;  Martin  v.  Mitchell,  2  J.  & 
^Y.  413;  Flight  v.  BoUand,  4  Russ.  298. 


AVANT    OF    MUTUALITY    IN    TUE    CONTRACT.  HI 

was  enforced,  notwithstanding  an  objection  which  was  taken  from  the 
unilateral  nature  of  the  instrument. (x) 

§  299.  (4)  Where  the  vendor  has  not  substantial!}'  the  whole  interest 
he  has  contracted  to  sell,  he  cannot  enforce  the  contract  against  the  pur- 
chaser, and  yet  the  purchaser  can  insist  on  having  all  that  the  vendor 
can  convey,  with  a  compensation  for  the  difference.  "  If,"  said  Lord 
Eldon,(^)  '<  a  man,  having  partial  interests  in  an  estate,  chooses  to  enter 
into  u  contract,  representing  it,  and  agreeing  to  sell  it  as  his  own,  it  is 
not  competent  to  him  afterwards  to  say,  though  he  has  valuable  interests, 
that  he  has  not  the  entirety,  and  therefore  the  purchaser  shall  not  have 
the  benefit  of  his  contract.  For  the  purpose  of  this  jurisdiction,  the 
person  contracting  under  those  circumstances  is  *bound  by  the  j.^^^^^ 
assertion  in  his  contract ;  and  if  the  vendee  chooses  to  take  as  L  J 
much  as  he  can  have,  he  has  a  right  to  that,  and  to  an  abatement ;  and 
the  court  will  not  hear  the  objection  by  the  vendor,  that  the  purchaser 
cannot  have  the  whole."(3)  This  principle  was  acted  on  by  Lord  Not- 
tingham, in  the  case  of  Cleaton  v.  Gower,(a)  where  the  defendant, 
Gower,  was  tenant  for  life  of  certain  estates  in  Shropshire,  and  he  and 
his  late  father  agreed  with  the  plaintiff  that  the  plaintiff  should  open 
and  work  certain  mines,  and  should  enjoy  the  minerals  raised  for  ten 
years,  if  the  defendant  or  his  issue  male  should  so  long  live,  at  a  yearly 
rent  of  £25.  The  plaintiff  sought  a  specific  performance  of  this  agree- 
ment :  the  defendant  objected  that  he  was  only  tenant  for  life,  and  sub- 
ject to  account  for  waste,  and  that  he  could  not  execute  the  agreement 
because  it  was  inconsistent  with  his  power  :  but  the  court  decreed  the 
defendant  to  execute  the  agreement  so  far  as  he  was  capable  of  doing  it, 
and  likewise  to  satisfy  the  plaintiff  such  damages  as  he  had  sustained  in 
not  enjoying  the  premises  according  to  the  agreement.  The  principle  is 
also  well  illustrated  by  Lord  Bolingbroke's  case, (6)  before  Lord  Thurlow  : 
the  incumbent  of  a  living  had  contracted  with  a  tenant  in  remainder  for 
the  purchase  of  the  advowson,  and  on  the  faith  of  the  contract  had  built 
a  much  better  house  on  the  glebe  than  he  would  otherwise  have  done  : 
the  tenant  for  life  refusing  to  concur  in  the  sale.  Lord  Thurlow  com- 
pelled the  tenant  in  remainder  to  convey  a  base  fee  by  levying  a  fine, 
with  a  covenant  to  suffer  a  recovery  on  the  death  of  the  tenant  for  life. 

*§  300.  Considerable  doubt  was  unquestionably  thrown  on  ^j^-„_^ 
this  principle  by  Lord  Redesdale,  in  two  cases  which  came  before  L  -• 
him  as  lord  chancellor  of  Ireland.  In  one  of  these  cases,(c)  a  tenant 
for  life  entered  into  an  agreement  with  the  plaintiff  to  grant  a  lease, 

(x)  Otway  V.  Braithwaite,  Finch,  405.  So  also  of  a  bond,  Butler  v.  Fowls,  2 
Coll.  C.  C.  156. 

(?/)  In  Mortlock  v.  Buller,  10  Ves.  315. 

(z)  See  accordingly  Attorney-General  v.  Day,  1  Ves.  Sen.  224 ;  Milligan  v.  Cooke, 
16  Ves.  1;  Dale  v.  Lister,  16  Ves.  7  ;  Hill  v.  Buckley,  17  Ves.  394;  Western  r.  Rus- 
sell, 3  V.  &  B.  187;  Ncale  v.  Mackenzie,  1  Ke.  474;  Bennett  v.  Fowler,  2  Beav. 
302  ;  Sutherland  v.  Briggs,  1  Ha.  26,  particularly  34 ;  Wilson  v.  Williams,  3  Jur. 
N.  S.  810,  (Wood,  V.C.) 

(a)  Finch,  164. 

(b)  1  Sch.  «fe  Lef.  19,  n.,  quoted  by  Lord  Cottenham  in  Great  Western  Railway 
Company  v.  Birmingham  and  Oxford  Junction  Railway  Company,  2  Phil.  605. 

(c)  Lawrenson  v.  Butler,  1  Sch.  &  Lef.  13. 


112        FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

which  he  could  not  do  without  the  consent  of  trustees  :  the  consent  was 
refused,  the  agreement  being  in  fact  intended  to  give  a  fine  to  the  tenant 
for  life  in  fraud  of  the  power  :  the  intended  lessee  filed  his  bill  against 
the  tenant  for  life,  and  contended  that  he  was  at  least  entitled  to  such  a 
lease  as  the  tenant  for  life  could  grant  out  of  his  estate.  But  Lord 
Kedesdale  dismissed  the  bill  for  want  of  mutuality.  "  No  man,"  he 
said,(f?)  "  signs  an  agreement  but  under  a  supposition  that  the  other 
party  is  bound  as  well  as  himself :  and  therefore  if  the  other  party  is  not 
bound,  he  signs  it  under  a  mistake  ;"  and  his  lordship  considered  that 
the  principle  above  stated  only  applies  where,  on  the  faith  of  an  agree- 
ment, one  party  has  put  himself  in  a  situation  from  which  he  cannot 
extricate  himself,  and  is  therefore  willing  to  forego  part  of  his  agree- 
ment,— where  an  injury  would  be  sustained  by  the  plaintiif,  unless  he 
were  to  get  such  an  execution  of  the  contract  as  the  defendant  could 
give.  In  the  other  case,(e)  which  came  before  Lord  Redesdale,  he 
further  observed  upon  the  specific  performance  of  contracts  by  a  tenant 
for  life  exceeding  his  power.  <'  I  think,"  said  his  lordship, (/)  courts  of 
equity  should  never  enforce  such  contracts,  whether  with  a  view  to  the 
party  himself  or  to  the  person  entitled  in  remainder.  In  the  first  place, 
it  is  unconscionable  in  the  tenant  for  life  to  execute  such  a  lease,  because 
it  brings  an  incumbrance  on  the  estate  of  the  remainderman,  and  puts 
him  to  litigation  to  get  rid  of  it :  and  as  to  the  tenant  for  life  himself, 
r*1J.m  ^^  ^^  compelling  him  to  do  what  is  to  be  the  foundation  of  *a 
L  -I  future  action  for  damages,  if  he  die  before  the  twenty-one  years. 
The  court  will  never  do  this,  but  will  leave  the  party  at  once  to  bring 
his  action  for  damages.  And  I  also  conceive  that  this  sort  of  contract, 
obtained  by  a  person  who  knew  at  the  time  the  nature  of  the  title,  is 
unconscionable  in  him,  as  he  makes  himself  a  party  knowingly  to  that 
which  is  a  fraud  on  the  remainderman ;  and,  under  such  circumstances, 
he  has  no  claim  to  the  assistance  of  a  court  of  equity. 

§  301.  This  view  of  the  jurisdiction  is  certainly  narrower  than  that 
entertained  by  previous  judges  :  it  has  been  remarked  to  be  such  by 
Lord  Langdale,(r;')  and  has  been  disapproved  of  by  Lord  St.  Leonards. 
<<  I  doubt,"  said  his  lordship, (/<)  speaking  of  Lord  Kedesdale's  dismissal 
of  the  bill  in  the  first  of  the  cases  above  alluded  to,  ''  whether  that  can 
be  maintained  as  the  law  of  the  court  where  there  is  no  fraud  in  the 
transaction.  If  there  be  a  bona  fide  intention  to  execute  the  power,  and 
the  contract  cannot  be  carried  into  effect,  I  do  not  see  why  the  interest 
of  the  tenant  for  life  should  not-  be  bound  to  the  extent  he  is  able  to 
bind  it,  unless  there  be  some  inconvenience." 

§  302.  It  is  obvious  that,  in  thus  proceeding  to  give  the  purchaser  an 
estate  different  from  that  which  the  vendor  contracted  to  sell,  the  court 
is  executing  the  contract  cy  pres,  or  rather,  perhaps,  is  carrying  into 
effect  a  new  contract, — a  course  in  which  difficulties  will  necessarily 

(d)  p.  21. 

(e)  Harnett  v.  Yielding,  2  Sch.  &  Lef.  549  ;  contra  Neale  v.  Mackenzie,  1  Ke. 
474. 

(/)  p.  559.     See  also  p.  553.  ((/)  In  Thomas  v.  Bering,  1  Ke.  746. 

(A)  In  Dyas  v.  Cruise,  2  Jon.  &  Lat.  4G0,  487. 


WANT    OF    MUTUALITY    IN    THE    CONTRACT.  US 

sometimes  arise;  and  these  put  restrictions  on  the  jurisdiction  under  dis- 
cussion.    These  seems  to  be  the  following. 

§  303.  (1)  Where  the  difference  in  value  of  the  interest  contracted 
for,  and  the  interest  actually  to  be  conveyed,  is  incapable  of  computation. 
Thus,  in  a  case  where  the  vendor  contracted  to  convey  the  fee,  and  the 
interest  which  he  could  convey  was  a  life  estate  and  an  ultimate  rever- 
sion in  fee  in  default  of  issue  male,  specific  performance  was  *re-  r^^ciji-i 
fused  on  this  ground  :((')  and  in  another  case,  where  compensa-  L  J 
tion  was  asked  for  the  difference  between  arbitrary  and  fixed  fines,  the 
former  being  susceptible  of  variation  as  the  estate  increased  in  value, 
Lord  Cottenham  considered  it  impossible  to  compute  it,  and  that  a  refer- 
ence to  the  master  to  compute  it  was  accordingly  erroneous. (/.•)  In  these 
cases,  the  purchaser  might  of  course  take  the  vendor's  interest,  if  he 
chose,  without  compensation. 

§  304,  (2)  Xor  will  the  rule  apply  where  the  alienation  of  the  partial 
interest  of  the  vendor  might  prejudice  the  rights  of  third  persons  inte- 
rested in  the  estate;  so  where  a  tenant  for  life,  without  impeachment  of 
waste,  under  a  strict  settlement,  had  contracted  for  the  sale  of  the  fee, 
the  court  refused  to  compel  him  to  alienate  his  life  interest,  on  the 
ground  that  a  stranger  would  be  likely  to  use  his  liberty  to  commit  waste 
in  a  manner  different  from  a  father,  and  more  prejudicial  to  the  rights 
of  those  in  remainder.(/) 

§  305.  (3)  In  Wheatley  v.  Slade,(?u)  the  vice-chancellor  of  England 
held  that  the  principle  did  not  apply  where  a  large  part  of  the  property 
cannot  be  conveyed;  and  consequently  where  there  was  a  contract  for 
the  sale  of  a  lace  manufactory,  and  it  turned  out  that  the  vendor  was 
only  entitled  to  nine-sixteenths  of  the  whole,  and  that  those  parts  were 
subject  to  a  debt  which  would  exhaust  nearly  the  whole  of  the  purchase- 
money,  he  refused  specific  performance.  But  in  cases  where  there  is  a 
great  difference  between  the  property  supposed  to  be  sold  and  that  which 
the  vendors  can  convey,  the  court  will,  notwithstanding  this  circumstance, 
^enforce  the  agreement  where  it  sees  that  the  intention  of  the  r^-i  ^9-1 
contract  is  the  sale  of  whatever  interest  the  vendor  has.  Thus,  L  -■ 
where  vendors  who  had  only  two  twenty-first  parts  contracted  to  sell  two 
sixth  parts  with  all  other  their  rights  and  interests  in  the  property,  the 
contract  was  enforced.  Such  a  case  is  very  different  from  a  contract  for 
the  sale  of  an  entirety  where  the  vendor  is  only  owner  of  part.(») 

§  30G.  (4)  It  is  perhaps  questionable  whether  in  any  case  in  which 
the  purchaser  is  aware  of  the  vendors  incapacity  to  convey  the  whole 
of  what  he  contracts  for,  he  can  claim  to  have  what   the  vendor  can 

(i)  Thomas  v.  Bering,  1  Ke.  729.     See  also  Graham  v.  Oliver,  3  Beav.  124. 

(A-)  White  v.  Ciiddon,  8  CI.  &  Fin.  766  ;  reversing  S.  C.  in  Ex.  4  Y.  &  C.  Ex.  25. 
See  also  infra,  ^  813  et  seq. 

(l)  Thomas  v.  Dering,  1  Ke.  '729,  quoted  in  "Wythes  v.  Lee,  3  Drew,  396.  See 
also  Graham  v.  Oliver,  3  Beav,  124  ;  cf,  Cleaton  v,  Gower,  Finch,  164,  stated  ante, 
g  299. 

(m)  4  Sim.  126.  See  the  observations  of  Lord  St.  Leonards  on  this  case,  Tend. 
&  Pur.  263;  also  Maw  v.  Topham,  19  Beav.  576,  where  the  vendors  were  only  en- 
titled to  three-fourths. 

(«)  Jones  V,  Evans,  17  L.  J.  Ch.  469. 


114      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

convey. (o)  In  a  recent  case,(j:))  where  the  vendors  were  entitled  only 
to  three-fourths  of  the  property,  and  the  purchaser  was  at  the  time  he 
filed  his  bill  aware,  or  had  good  reason  to  believe,  that  no  good  title 
could  be  made  to  the  whole  of  the  premises,  the  master  of  the  rolls  held 
that  though  he  might  probably  have  recovered  damages,  yet  as  he  chose 
to  sue  for  specific  performance,  he  was  not  entitled  to  any  abatement  on 
the  purchase-money,  but  that  he  might  take  without  abatement  the  three- 
quarters  which  the  vendors  could  convey.  And  it  seems  clear  that  where 
the  purchaser  is  privy  to  an  intended  fraud  on  a  settlement  by  the  ven- 
dor, he  cannot  claim  to  have  that  which  the  vendor  can  convey  out  of 
his  interest :  so  that  where  a  person  has  dealt  with  a  tenant  for  life  for  a 
lease,  being  at  the  time  aware  that  it  would  be  in  excess  of  the  tenant 
for  life's  power,  and  so  endeavoured  to  put  a  fraud  upon  the  settlement, 
he  will  not  afterwards  be  allowed  to  call  for  a  lease  from  the  tenant  for 
life  to  the  extent  of  his  interest :  the  agreement  was  not  at  the  time  it 
was  entered  into  a  fair  and  proper  one,  and  the  court  therefore  will  not 
interfere.  (^'^ 


[*143]  *CH  AFTER   IX. 

OF  THE  ILLEGALITY  OF  THE  CONTRACT. 

§  307.  The  illegality  of  an  agreement  is  of  course  a  bar  to  its  specific 
performance,  as  well  as  to  every  other  proceeding  by  which  either  of  the 
parties  may  seek  to  enforce  it.  The  interference  of  the  court  is  prevented, 
whether  the  contract  were  illegal  at  the  time  of  its  being  entered  into, 
or  was  then  legal,  but  has  been  rendered  illegal  by  subsequent  statute 
law  before  its  execution. (a)  But  in  the  latter  case  the  court  is,  it  seems, 
more  anxious  to  find  some  means  of  executing  the  contract  so  far  as  it 
may  be  done  without  violating  the  law.(i) 

§  308.  What  constitutes  illegality  in  all  the  various  species  of  con- 
tracts which  may  exist  between  man  and  man  is  a  subject  of  enormous 
dimensions,  regulated  in  part  by  the  statute  law  of  the  realm,  in  part  by 
considerations  of  public  policy, (c)  and  in  part  even  by  the  rules  which 
the  courts  have  adopted  for  the  general  protection  of  all  suitors. ((/)  It 
will  be  needful  here  only  to  enter  into  the  subject  so  far  as  it  peculiarly 
affects  suits  for  specific  performance. 

(o)  Beeston  v.  Stuteley,  2T  L.  J.  Ch.  156,  (Wood.  V.  C.) 

[p)  Maw  V.  Tophatn,  19  Beav.  576.  Lord  St.  Leonards  appears  to  doubt  this 
case,  Vend.  &  Pur.  257. 

(q)  O'Rourke  v.  Percival,  2  Ball  &  B.  58.     See  ante,  ^  300. 

(a)  Atkinson  v.  Ritchie,  10  East,  530,  534;  Barker  v.  Hodgson,  3  M.  &  S.  267  ; 
Esposite  V.  Bowden,  4  Ell.  &  Bl.  963.  See  also  Winnington  v.  Briscoe,  8  Mod.  51, 
and  post,  g  607. 

(b)  Bettesworth  v.  Dean  of  St.  Paul's,  Sel.  C.  in  Ch.  G6 ;  post,  ?  672. 

(c)  As  to  this  class,  see  Egerton  v.  Lord  Brownlow,  4  Ho.  Lords,  1,  and  the  cases 
there  collected. 

(d)  Cooth  V.  Jackson,  6  Ves.  12. 


ILLEGALITY  OF  THE  CONTRACT.  115 

§  309.  The  nature  of  a  defence  founded  on  the  illegality  *of  r*-i 44-1 
a  contract  differs  in  its  nature  from  most  other  defences ;  the  •-  -^ 
objection  is  rather  that  of  the  public  speaking  through  the  court  than  of 
the  defendant  as  a  party  to  the  contract.  The  law  disallows  all  proceed- 
ings in  respect  of  illegal  contracts,  not  from  any  consideration  of  the 
moral  position  and  rights  of  the  parties,  but  upon  grounds  of  public 
policy.  For  if  A.  and  13.  enter  into  a  contract  for  some  illegal  end  to 
which  both  are  alike  privy,  and  A.  do  his  part  in  the  business,  B.  has, 
it  seems,  no  moral  right  to  refuse  performance  of  his  part,  provided  there 
be  nothing  immoral  in  that  part  abstracted  from  the  general  end  of  the 
contract;  as,  for  instance,  if,  under  an  agreement  to  ship  goods  contrary 
to  law,  A.  ship  the  goods,  B.  has  no  ground  in  natural  equity  for  refus- 
ing to  pay  the  stipulated  price :  A.  and  B.  were  equal  in  the  culpability 
of  the  contract,  but  B.  does  a  fresh  wrong  by  refusing  payment  ;(e)  but 
it  is  a  wrong  for  which  no  remedy  is  afforded  by  the  law,  for  ex  dolo  malu 
non  oritur  actio.  "It  is  not  for  his  (the  defendant's)  sake,"  said  Lord 
3Iansfield,(/)  "  that  the  objection  is  ever  allowed;  but  it  is  founded  in 
general  principles  of  policy,  which  the  defendant  has  the  advantage  of, 
contrary  to  the  real  justice  between  him  and  the  plaintiff, — by  accident, 
if  I  may  so  say."  Where  the  defendant  has  received  the  benefit  of  the 
contract  this  defence  is  evidently  an  unrighteous  one,  and  will  accord- 
ingly be  received  by  the  court  with  some  degree  of  disfavour. (j/) 

§  310.  The  principle  on  which  this  defence  reposes  is  shown  by  the 
cases  on  the  specific  performance  of  awards ;  for  the  illegality  of  the  act 
directed  to  be  done  by  the  award  *wili  be  a  ground  for  refusing  r^-i  • --1 
specific  performance,  although  the  unreasonableness  of  the  act  L  '  J 
would  be  no  ground,  it  being  a  decision  by  the  judge  chosen  by  the 
parties. (7i)  It  is  further  illustrated  by  this,  that  where  in  a  suit  for 
specific  performance,  a  fact  not  put  in  issue  by  either  party  comes  out  on 
the  evidence  affecting  the  legality  of  the  contract,  it  will  be  noticed  by 
the  court,  which  will  not  proceed  without  directing  an  inquiry. (/) 

§  311.  As  to  the  clearness  of  the  illegality  which  will  be  a  bar  to  spe- 
cific performance,  there  is  perhaps  some  slight  diversity  of  expression. 
In  Johnson  v.  Shrewsbury  and  Birmingham  Railway  Company, (A-)  Lord 
Justice  Knight  Bruce  laid  it  down  that  before  the  court  would  enforce 
the  specific  performance  of  an  agreement,  it  must  be  satisfied  that  there 
is  not  a  reasonable  ground  for  contending  that  the  agreement  is  illegal 
or  against  the  policy  of  the  law;  whilst  in  a  case(A  on  an  agreement  by 
a  solicitor  retiring  from  a  firm,  to  allow  his  name  to  be  used  after  his 

(e)  There  is  a  diSTerence  of  opinion  amongst  the  jurists  as  to  the  binding  nature 
of  the  promise  in  the  case  above  stated,  inforo  conscientice ;  though  all  agree  that 
it  cannot  be  enforced.  See  Grot,  de  Jur.  Bell,  ac  Pac.  lib.  ii.  c.  xi.  s.  9 ;  Pothier, 
Tr.  des  Oblig.  part  i.  ch.  i.  sect.  1,  art,  3  §  G. 

(f)  In  Holman  v.  Johnson,  Cowp.  343. 

(g)  Shrewsbury  and  Birmingham  Railway  Company  v.  London  and  North-west- 
ern Railway  Company,  16  Beav.  44.     See  also  ante,  g  204. 

(A)  Wood  v.  Griffith.  1  Sw.  43. 

(?)  Parken  v.  Whitby,  T.  &  R.  366;  Evans  v.  Richardson,  3  Mer.  469. 
(A-)  3  De  G.  M.  k  G.  914.     See  also  City  of  London  y.  Nash,  3  Atky.  512  :  S.  C. 
1  Yes.  Sen.  12. 

{I)  Aubin  V.  Holt,  2  K.  &  J.  66. 


116      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

retirement,  Yice-Chaucellor  '\Yood(??i)  observed,  "  The  agreement  must 
be  legal  or  illegal,  and  it  is  not  within  the  discretion  of  the  court  to  re- 
fuse specific  performance  because  an  agreement  savours  of  illegality.  It 
must  be  shown  to  be  illegal." 

§  312.  Where  a  trust  is  constituted  for  the  performance  of  a  contract 
in  itself  incapable  of  being  enforced,  and  the  trust  is  in  itself  perfectly 
lawful  and  independent  of  the  contract,  except  so  far  as  that  may  be 
necessary  to  explain  the  constitution  of  the  trust,  there  the  trust  maybe 
enforced,  and  by  means  of  it  the  contract  specifically  performed.  This 
principle  was  acted  on  in  the  case  of  Powell  v.  Knowler,(«')  before  Sir 
J.  Fortescue,  M.  R.,  where  A.  and  B.  entered  into  an  agreement  for  the 
r*1J.f'l  ^i'^isi*^^  *^f  ^^  estate  *that  was  to  be  recovered,  which  was  in- 
■-  -■  capable  of  being  enforced  on  the  ground  of  champerty,  and  the 
party  who,  according  to  the  agreement,  was  to  convey  part  of  the  estate 
to  the  other,  by  a  codicil  directed  the  agreement  to  be  carried  out,  and 
created  a  trust  for  that  purpose ;  the  agreement  was  specifically  enforced 
against  the  trustee. 

§  313.  The  principle  of  this  case  is  in  analogy  with  that  of  several 
other  cases.  Thus  where  an  act,  though  the  result  of  an  unlawful  con- 
tract, is  itself  lawful,  it  may  form  the  consideration  for  a  lawful  agree- 
ment, as,  for  instance,  the  actual  transfer  of  stock,  the  agreement  to  do 
which  was  illegal. (o)  Similarly,  a  trustee  into  whose  hands  money  is 
paid  on  account  of  a  third  person,  cannot  set  up  the  illegality  of  the  trust 
under  which  the  money  was  so  paid,  though  the  cestui  que  trust  could 
not  have  enforced  his  right  against  the  payer  directly,  as  in  that  case  he 
could  have  only  got  at  the  money  through  the  illegal  agreement. ^p) 


[*147]  ^CHAPTER    X. 

OF   THE    CONTRACT  BEING   ULTRA   VIRES. 

§  314.  Corporations  created  for  special  purposes  have  a  power  to  con- 
tract, but  within  certain  limits  only,  and  all  contracts  in  excess  of  their 
powers,  or  ultra  vires,  are  void,  and  therefore  necessarily  incapable  of 
being  enforced  either  at  law  or  in  equity.  This  subject  has  recently  un- 
dergone great  discussion  in  respect  of  contracts  by  railway  companies. 

§  315.  A  contract  entered  into  by  such  a  corporation  in  the  proper 
form  \s  prima  facie  good,  and  the  onus  lies  on  the  party  alleging  it  to  be 
void  to  show  that  it  is  in  excess  of  the  company's  powers,  and  not  on  the 
party  relying  on  it  to  show  that  the  corporation  was  authorized  to  do  it. 
Corporations  have  at  law  a  power  to  enter  into  all  contracts  not  expressly 
or  impliedly  prohibited; (a)  and  therefore  all  corporate  bodies  diVQ prima 

(m)  p.  70.  (n)  2  Atky.  224. 

(o)  M'Callan  v.  Mortimer,  9  M.  &  W.  636. 

(p)  Thomson  v.  Thomson,  7  Ves.  470;  Tenant  v.  Elliott,  1  B.  &  P.  3. 
(a)  Per  Erie,  J.,  in  Mayor  of  Norwich  v.  Norfolk  Railway  Company,  4  Ell.  &  Bl. 
307,  413. 


[*148] 


CONTRACT    BEINO     ULTRA    VIRES,  HJ 

facia  bound  by  contracts  under  tlieir  corporate  seals  ;  "  but  tbis  livima 
facie  rigbt,"  said  Lord  Cranwortb,(//)  <<  does  not  exist  in  any  case  where 
the  contract  is  one  which,  from  the  nature  and  object  of  incorpora- 
tion, the  corporate  body  is  expressly  or  impliedly  prohibited  from  mak- 
ing." <<  Where  a  corporation,"  said  Lord  Weusleydale,(f)  '' is  created 
by  an  act  of  parliament  for  *particular  purposes,  with  special 
powers,  their  deed,  though  under  their  corporate  seal,  and  that 
regularly  affixed,  does  not  bind  them,  if  it  appears,  by  the  express  pro- 
visions of  the  statute  creating  the  corporation,  or  by  necessary  or  reason- 
able inference  from  its  enactments,  that  the  deed  is  ultra  vires,  that  is, 
that  the  legislature  meant  that  such  a  deed  should  not  be  made." 

§  310.  In  the  case  of  the  Shrewsbury  and  Birmingham  llailway  Com- 
pany V.  London  and  North-western  llailway  Company,(J)  the  agreement 
between  the  companies  was  briefly  to  the  efi'ect  that  the  North-western 
Company  should  give  up  to  the  Shrewsbury  Company  seven-thirteenths 
of  the  profits  of  the  carriage  of  passengers  and  goods  over  a  part  of  the 
North-western  line,  in  consideration  of  receiving,  in  return,  six-thir- 
teenths of  the  profits  made  by  the  Shrewsbury  company  on  a  certain 
portion  of  their  line.  In  the  course  of  the  protracted  litigation  which 
arose  out  of  this  agreement,  opposing  opinions  were  given  by  the  highest 
authorities  as  to  whether  it  was  ult?-a  vires  or  not,  Lord  Cottenham  and 
the  Queen's  Bench  inclining  to  the  opinion  of  its  validity,  and  Lord  Jus- 
tice Turner  and  Lord  Cranworth,  sitting  in  the  house  of  lords,  leaning 
strongly  to  the  opinion  that  it  was  in  excess  of  the  powers  of  the  compa- 
nies. If  such  an  agreement  was  valid  as  to  part  of  the  line,  why  is  it 
not  valid  as  to  the  whole  ?  and  if  so,  there  would  be  no  impediment,  it 
was  urged,  to  two  companies  bringing  their  funds  into  a  common  stock, 
and  dividing  them  amongst  their  shareholders  in  any  stipulated  propor- 
tion. 

§  317.  In  the  case  of  the  South  Yorkshire  Railway  and  *Eiver  r;(:i  j^a-i 
Dun  Company  V.  Great  Northern  llailway  Company, (e)  the  plain-  L  J 
tiffs  sued  on  a  deed  which  carried  out  an  arrangement  come  to  by  the 
two  companies,  by  which  the  Great  Northern  Kailway  Company  was  to 
be  allowed  to  use  the  line  of  the  other  company  for  the  purpose  of  carry- 
ins;  coal  from  the  field  intersected  by  it,  and  thence  on  to  their  own  line, 
on  payment  to  the  South  Yorkshire  Company  of  sums  which  should, 
together  with  the  profits  of  that  company,  enable  them  to  pay  their  pro- 
prietors dividends  varying  according  to  the  quantity  of  coal  carried  by 
the  Great  Northern  Company  over  their  line ;  the  argument  turned 
mainly  upon  the  effect  of  the  87th  section  of  the  llailway  Clauses  Con- 
solidation Act,  1845,  by  which  railway  companies  are  enabled  to  contract 

(h)  In  Shrewsbury  and  Birmingham  Raihvaj-  Company  v.  North-western  Rail- 
way Company,  6  Ho.  Lords,  135,  13(3. 

(c)  In  South  Yorkshire  Railway  and  River  Dun  Company  v.  Great  Northern  Rail- 
way, 9  Exch.  84. 

(d)  Hotbre  Lord  Cottenham,  2  M-N.  &  G.  324;  before  Lord  Truro,  3  M'N.  &  G. 
70  ;  before  Q.  B.  17  Q.  B.  Rep.  G52;  before  Sir  John  Romilly,  16  Beav.  441  ;  be- 
fore the  Lords  Justices,  4  De  G.  M.  &  G.  115,  and  in  D.  P.  6  IIo.  Lords,  113;  and 
see  Lancaster  and  Carlisle  Railway  Company  v.  North-western  Railway  Company, 
2  K.  &  J.  2i)3.  '  (c)  9  Ex.  55. 


118      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

with  one  another  for  the  passage  over  their  lines  of  wagons,  upon  pay- 
ment of  such  tolls  and  under  such  conditions  as  maybe  agreed  on.  The 
court  was  divided  in  opinion,  Martin,  B.  holding  the  contract  to  be  ultra 
vires  ;  Piatt,  B.  and  Lord  Wensleydale  holding  it  to  be  binding.  Lord 
Wensleydale  held  it  to  be  good,  because,  on  his  view  of  the  statutory 
powers  of  the  company,  they  did  not  appear  to  be  restrained  from  enter- 
ing into  such  a  contract  as  that  sued  on ;  he  thought  that  they  certainly 
were  not  so  restrained )  at  any  rate  it  was  far  from  clear  that  they  were, 
and  the  contract  haxu^  prima  facie  good,  and  it  not  being  made  out  that 
the  act  prohibited  such  a  bargain,  the  contract  must  be  enforced. (/) 
The  decision  of  the  majority  of  the  court  in  favour  of  the  validity  of  the 
contract  was  affirmed  in  the  exchequer  chamber.(f7) 

§  318.  We  will  now  consider  rather  more  precisely  what  contracts  are 
by  implication  prohibited ;  for  as  to  those  expressly  prohibited,  little 
question  is  likely  to  arise. 

§  319.  In  the  first  place,  it  seems  perfectly  clear  that  any  intentional 
r*i  i=im  ^^®  ^^  ^^®  powers  of  the  corporation  to  *defeat  the  objects  of  the 
L         J  corporation  must  be  prohibited  by  implication. (/i) 

§  320.  Again,  such  a  corporation  cannot  engage  in  objects  foreign  to 
the  objects  and  purposes  of  their  corporation,  as  for  example  carrying  on 
a  trade  not  contemplated  by  the  act;  and  it  is  immaterial  whether  such 
objects  be  profitable  to  the  company  or  not,  and  whether  they  be  ap- 
proved by  the  shareholders  or  not :  a  railway  company  incorporated  by 
act  of  parliament  is  bound  to  apply  all  its  funds  for  the  purposes  pro- 
vided by  its  act,  and  for  no  other.  This  was  established  in  the  case  of 
the  East  Anglian  Railway  Company  v.  Eastern  Counties  Railway  Com- 
pany,(A  where  it  was  held  that  no  action  could  be  maintained  on  a  cove- 
nant by  the  defendants  to  pay  to  the  plaintiffs  the  costs  incurred  in 
applications  to  parliament  by  the  plaintiffs,  at  the  instance  of  the  defen- 
dants, for  obtaining  powers  which  the  defendants  considered  it  desirable 
for  their  interests  that  the  plaintiffs  should  possess.  This  case  has  been 
followed  by  Macgregor  v.  The  Official  Manager  of  the  Dover  and  Deal 
Railway  Company,(7L-)  and  by  Gage  v.  Newmarket  Railway  Company,^/) 
and  has  been  fully  recognized  by  Lord  Cranworth  in  the  house  of 
lords,  (m) 

§  321.  The  general  doctrine  now  before  us  was  very  much  ventilated 
in  the  case  of  the  Mayor  of  Norwich  v.  Norfolk  Railway  Company.(7?) 
There  the  railway  company,  being  authorized  by  statute  to  make  a  rail- 
way between  certain  termini,  crossing  the  river  Yare  at  a  specified  place, 
found  difficulties  in  effecting  their  crossing  there,  and  had,  with  the 
assent  of  the  admiralty  and  of  the  proprietors,  *made  a  pier  in 
L         -1  another  part  of  the  river,  with  the  intention  of  carrying  the  rail- 

(/)  p.  88.  {g)  9  Ex.  643. 

(h)  Per  Erie,  J.,  in  Mayor  of  Norwich  v.  Norfolk  Railway  Company,  4  Ell.  &  Bl. 
397,  413.  {i)   11  C.  B.  775  ;  S.  C.  7  Rail.  C.  150. 

[k)  18  Q.  B.  618  ;  S.  C.  7  Rail.  C.  227.  (/)  18  Q.  B.  457. 

(m)  In  Eastern  Counties  Railway  Company  v.  ITawkes,  5  Ho.  Lords,  347.  See 
also  Bostock  v.  North  Staffordshire  Railway  Company,  4  Ell.  &  Bl.  798,  particu- 
larly the  judgments  of  Wightman  and  Coleridge,  J.  J. 

(rt)  4  Ell.  &  Bl.  397. 


CONTRACT    BEING    ULTRA    VIRES.  HQ 

way  across  at  this  place  :  the  plaintiffs  indicted  the  defendants  for  a 
nuisance ;  and,  for  the  compromise  of  these  proceedings,  it  was  agreed 
that  the  defendants  should  complete  the  works  in  (juestion  within  a  year, 
in  a  manner  agreed  on,  so  as  to  protect  the  navigation,  and  that,  if  the 
works  should  not  be  completed  within  twelve  months,  the  company  should 
pay  £1000  as  liquidated  damages ;  the  plaintiff  sued  on  a  deed  contain- 
ing a  covenant  to  this  effect.  The  court  was  greatly  divided  in  opinion, 
as  to  the  rights  of  the  plaintiffs;  Erie,  J.,  severely  criticizing  the  deci- 
sion in  the  East  Anglian  case,  held  that  the  contract  was  not  expressly  or 
impliedly  prohibited  at  law,  and  was  therefore  good  :  Coleridge,  J.,  also 
held  it  good,  upon  a  distinction  to  be  hereafter  noticed  between  a  purpose 
not  authorized  by  the  incorporation,  and  unauthorized  means  of  effectuating 
the  authorized  purpose ;  whilst  Lord  Campbell  held  the  covenant  to  be 
bad,  as  being,  on  the  face  of  it,  and  therefore  within  the  knowledge  of 
the  covenantee,  for  the  application  of  the  funds  to  a  purpose  other  than 
those  for  which  the  company  was  established. 

§  322.  The  doctrine  in  question  is  not  carried  so  far  as  to  forbid  the 
doing  of  the  least  thing  not  expressly  mentioned  in  the  act  of  incorpo- 
ration :  the  directors  of  a  company  have  power  to  do  all  such  things  as 
are  necessary  and  proper  for  the  carrying  out  the  intention  of  the  act  of 
parliament,  though  they  have  no  power  of  doing  anything  beyond  it.(oj 
It  seems,  for  instance,  that  a  railway  company  might,  without  any  spe- 
cial authority  by  statute,  lawfully  contract  for  the  purchase  of  a  piece  of 
land  for  the  purpose  of  enlarging  a  terminus. (;/) 

§  323.  Mr.  Justice  Coleridge,  in  a  recent  case,  drew  a  *dis-  ^^.,^..-,-. 
tinction  between  <'  a  difference  of  purposes  and  a  difference  of  L  "J 
means  and  modes  by  and  through  which  the  same  purpose  is  to  be 
effected, "(^q'^  and  considered  that  whilst  all  attempts  to  carry  into  effect 
a  foreign  purpose  are  void,  the  corporation  has  power  to  vary  the  mode  by 
which  the  given  purpose  is  to  be  attained  ;  so  that,  though  a  company  con- 
stituted for  the  purpose  of  making  a  railway  from  A.  to  B.,  could  not 
instead  thereof  make  one  from  C.  to  D.,  yet  that  it  might  lawfully  enter 
into  contracts  to  effect  a  deviation  in  part  of  its  course  from  that  origi- 
nally specified,  that  part  of  the  originally  designed  line  having  been 
found  impracticable  or  difficult ;  and  this  distinction  appears  to  meet  with 
the  approval  of  Lord  St.  Leonards. (r) 

§  324.  The  mere  fact  that  a  contract  by  the  directors  is  vlfra  vires,  as 
between  them  and  the  shareholders,  does  not  necessarily  disentitle  the 
other  party  to  the  contract  from  suing  upon  it  at  law.  To  do  so,  it  is  further 
necessary  that  the  party  suing  should  have  known  at  the  time  of  the 
contract  that  it  was  intended  for  a  purpose  unconnected  with  the  incor- 
poration of  the  company;  but  where  the  nature  of  the  contract  shows 
that  it  must  have  been  so  unconnected,  both  the  parties  will  be  taken  to 

(o)  Per  Lord  Langdale  in  Coleman  v.  Eastern  Counties  Railway  Company,  10 
Beav.  17. 

(p)  Per  Lord  Campbell  in  Mayor  of  Norwich  v.  Norfolk  Railway  Companv,  4 
Ell.  &  Bl.  397,  442. 

(?)  S.  C.  p.  432. 

(r)  In  Eastern  Counties  Railway  Company  v.  Hawkes,  5  Ho.  Lords,  C.  372. 


120       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

have  had  this  knowledge,  and  the  court  will  judicially  perceive  it  to  be 
void.  Therefore,  if  a  railway  company  were  to  contract  for  a  thousand 
gross  of  green  spectacles,  the  contract  would  be  necessarily  void ;  but  if 
it  were  to  contract  for  iron  rails,  not  for  the  purposes  of  making  the  line, 
but  for  some  other  object,  the  contract  would  be  ultra  vires,  as  against 
shareholders,  but  might  be  perfectly  good  in  favour  of  the  other  party  to 
the  contract. (s) 

r*1  ^^1  §  ^^^"  ^^'^^^  ^^^'^  principle  it  follows  that,  where  a  public  *com- 
•-  J  pany  is  authorized  to  take  land  for  extraordinary  purposes,  a  per- 
son who  agrees  to  sell  his  land  to  this  company  is  not  bound  to  see  that 
it  is  strictly  required  for  such  purposes ;  but  if  he  acts  bona  fide  and 
without  knowledge  that  the  laud  is  not  so  required,  or  that  the  transac- 
tion is  any  misapplication  of  the  funds  of  the  company,  the  contract  is 
binding  in  his  favour,  and  may  be  enforced  by  him  in  equity  -.(t)  and  the 
same  seems  to  hold  good  where  the  company,  really  requiring  part  of  an 
estate,  purchase  more  than  is  required. («) 

§  326.  The  cases  which  have  been  decided  between  shareholders  and 
directors,  as  to  transactions  beyond  the  scope  of  the  corporation,  will  not 
directly  apply  to  cases  between  the  corporation  and  third  parties,  because, 
in  the  latter  case,  the  additional  element  of  the  illegality  being  known  to 
the  third  party,  is  to  be  imported.  But  with  this  addition  the  cases  will, 
it  seems,  apply,  and  they  will  therefore  be  here  briefly  alluded  to. 

§  327.  In  Coleman  v.  Eastern  Counties  Railway  Company,(z;)  Lord 
Langdale,  at  the  instance  of  a  shareholder,  restrained  the  application  of 
any  part  of  the  funds  of  a  railway  company  in  assisting  a  company  for 
establishing  steam  communication  between  Harwich  and  the  north  of 
Europe,  which  the  directors  of  the  railway  company  thought  would  in- 
crease their  traffic,  and  thus  promote  their  interests.  In  Solomon  v. 
Laing,(?f;)  the  same  learned  judge  restrained  one  company  from  purchas- 
ing shares  in  another.  In  other  cases,  railway  companies  have  been  res- 
trained from  applyingany  of  their  resources  in  promoting  a  bill  to  improve 
r*l  f^n  *'^^  navigation  of  a  river,(x)  in  promoting  a  branch  line,(,y)  or  *in 
L  -1  making  a  part  only  of  the  line  when  the  rest  was  abandoned  ;{£) 
and  the  principle  has  been  distinctly  recognized  by  the  highest  authori- 
ties in  other  cases  between  a  shareholder  and  the  company. (a) 

§  328.  On  this  principle,  corporations  will  be  restrained  from  expend- 
ing money  in  applications  to  paliament  to  extend  their  powers  beyond 
the  objects  for  which  they  were  constituted  :  thus,  in  one  case,  a  corpora- 
tion of  a  town  was  restrained  from  applying  to  the  legislature,  at  the  ex- 

(.s)  Per  Lord  Campbell  and  Erie,  J.,  in  Maj'or  of  Norwich  v.  Norfolk  Railway 
Company,  4  Ell.  &  Bl.  397,  415,  443;  per  Lords  Campbell  and  St.  Leonards  in 
Eastern  Counties  Railway  Company  v.  Hawkes,  5  Ho.  Lords,  338,  355,  372. 

U)  Eastern  Counties  Railway  Company  v.  Hawkes,  5  Ho.  Lords,  331,  349,  355. 

(m)  S.  C.  (y)   10  Beav.  I ;  S.  C.  4  Rail.  C.  513. 

(w)   12  Beav.  339. 

(x)  Munt  V.  Shrewsbury  and  Chester  Railway  Company,  13  Beav.  1. 

(y)  Great  Western  Railway  Company  v.  Rushout,  5  De  G.  &  Sm.  290. 

{z)  Cohen  v.  Wilkinson,  5  Rail.  C.  741. 

(a)  Bagshawe  v.  Eastern  Counties  Railway  Company,  G  Rail.  C.  152  ;  S.  C. 
2  M'N.  &  G.  289;  Beman  v.  Rufiford,  7  Rail.  C.  48,  particularly  75;  S.  C.  1  Sim. 
N.  S.  550. 


STATUTE    OF    FRAUDS,    ETC.  121 

pcnsc  of  the  borough  fund,  for  a  bill  to  improve  a  river.(y)  But  this  will 
not  hold  where  the  proceedings  are  not  for  the  purpose  of  extending  the 
powers  of  the  corporation,  but  for  defending  its  existing  rights. (^) 


*CIIAPTEIl    XL  [*155] 

OF   THE   STATUTE   OF    FRAUDS   AND   THEREIN    OF   PART   PERFORMANCE. 

§  329.  By  the  fourth  section  of  the  Statute  of  Frauds(a)  it  is,  amongst 
other  things,  enacted  that  no  action  shall  be  brought  whereby  to  charge 
any  person  upon  any  contract  or  sale  of  lands,  tenements,  or  hereditaments, 
or  any  interest  in  or  concerning  them,  unless  the  agreement  upon  which 
.such  action  shall  be  brought,  or  some  memorandum  or  note  thereof,  shall 
be  in  writing  and  signed  by  the  party  to  be  charged  therewith,  or  some 
other  person  thereunto  by  him  lawfully  authorized ;  and  by  the  compa- 
nies' Clauses  Consolidation  Act,  1845,(6)  sect.  97,  any  contract  which,  if 
made  between  private  parties,  would  be  by  law  required  to  be  in  writing, 
and  signed  by  the  parties  to  be  charged  therewith,  must,  in  order  to  bind 
the  company,  be  in  writing,  and  signed  by  two  of  the  directors. (r) 

§  330.  It  has  been  decided  that  this  section  of  the  Statute  of  Frauds 
refers  not  to  the  solemnities  of  the  contract,  but  to  the  procedure,  and 
consequently  that  an  action  will  not  lie  in  this  country  on  an  agreement 
made  in  a  foreign  country,  and  valid  there,  which,  if  made  here,  would 
have  been  incapable  of  being  sued  on  by  reason  of  this  section. (t?) 

§  331.  It  is  obvious  that  in  many  cases  a  defence  to  a  *suit  for  ^^  ^  ., 
specific  performance  may  be  grounded  on  this  section.  We  shall  L  '-"^J 
proceed  therefore  to  consider  (1)  how  such  defence  may  be  taken  advan- 
tage of,  (2)  what  constitutes  a  sufficient  agreement,  or  memorandum  or 
note  thereof,  within  the  meaning  of  the  statute,  and  (3)  what  takes  an 
agreement  out  of  the  statute  in  the  contemplation  of  a  court  of  equity. 

§  332.  The  want  of  an  agreement  within  the  statute  may,  when  clearly 
appearing  on  the  bill,  be  taken  advantage  of  by  general  demurrer,(e)  or 
by  a  demurrer  alleging  the  want  of  such  an  agreement,(/)  because,  though 
some  states  of  facts  might,  as  wc  shall  hereafter  see,  take  the  case  out  of 
the  statute,  and  so  render  the  want  of  writing  not  fatal  to  the  plaintiff, 
yet  it  lies  on  him  to  allege  them,  and  not  on  the  defendant  to  negative 
them.     In  this  respect,  there  is  a  wide  difference  between  the  Statute  of 

(y)  Attorney-General  v.  Corporation  of  Norwich,  16  Sim.  225  ;  Simpson  v.  Deni- 
son,  10  Ila.  51  ;  and  see  on  tliis  point,  Eastern  Counties  Railway  Company  v. 
Hawkes,  5  Ho.  Lords,  331. 

(z)  Bright  V.  North,  2  Phil.  216.  (a)  29  Car.  II.  c.  3. 

(b)  8  &  9  Vic.  c.  16.  See  also,  as  to  joint  stock  companies,  19  &  20  Vic.  c.  6" 
s.  41, 

(c)  Leominster  Canal  Company  v.  Shrewsbury  and  Hereford  Railway  Company 
3K.  &J.  654.  '  •^' 

(d)  Leroux  v.  Brown,  12  C.  B.  801.  (e)  Field  v.  Hutchinson,  1  Beay.  599. 
(/)  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41 ;  S.  C.  2  Sm.  &  Gif.  115  ;  Barkworth 

v.  Young,  4  Drew,  1.     Sec  also  Howard  v.  Okeover,  3  Sw.  421,  n. 


122       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

Frauds  and  the  Statute  of  Limitations,  wliicli  it  seems  must  in  all  cases 
be  pleaded. (f/) 

§  3o3.  The  benefit  of  the  statute  may  also  be  had  by  plea.  Y/here  the 
bill  alleges  an  agreement,  and  is  silent  as  to  part-performance,  it  seems 
to  have  been  thought  that  a  plea  of  the  statute  was  not  enough  without  an 
answer  also  denying  an  agreement,  on  the  ground  that  the  answer  might 
confess  the  agreement,  and  that  then  it  would  be  enforced. (/i)  But  this 
does  not  now  appear  to  be  the  law  of  the  court,  for  as  we  shall  see,  an 
answer  confessing  an  agreement,  and  claiming  the  benefit  of  the  statute, 
is  a  bar  :  and  a  plea  without  an  answer  must,  it  seems,  be  at  least  equiva- 
lent to  such  an  answer,  for  taken  most  strongly  against  the  defendant, 
it  must  amount  to  a  confession  of  the  agreement  and  a  claim  of  the  bene- 
fit of  the  statute. 

*§  334.  To  a  bill  alleging  a  parol  agreement  and  part  perform- 
L  '  '-J  ance,  a  plea  averring  that  there  was  no  agreement  in  writing, 
and  an  answer  insisting  that  the  alleged  acts  did  not  amount  to  part-per- 
formance, was  allowed  by  Lord  Thurlow,  after  great  consideration  and 
much  argument. (j)  For  the  statute  and  the  doctrine  of  equity  taken  to- 
gether amount  to  this,  that  there  must  be  either  a  writing  signed,  or  a 
parol  agreement  and  part-performance  :  the  one  alternative  was  met  by 
the  plea,  the  other  by  the  answer;  together  therefore  they  met  the  whole 
bill. 

§  335.  Such  a  bill  cannot,  it  seems,  be  met  by  a  plea  alone,  for  a  plea 
in  bar  to  such  a  bill  would  contain  two  distinct  points, — namely,  the 
denial  of  the  written  agreement  and  of  the  acts  of  part-performance,  and 
would  therefore  be  multifarious  and  bad.(7i;) 

§  336.  An  answer  denying  the  agreement  is  of  course  a  good  answer 
to  a  bill :  and  where  the  answer  denies,  or  does  not  admit  the  agreement, 
the  defendant  need  not  plead  the  statute  in  order  to  avail  himself  of  it 
as  a  defence,  for  then  the  burthen  of  proof  is  wholly  on  the  plaintiff,  who 
must  prove  a  valid  agreement  capable  of  being  enforced. 0 

§  337.  But  where  the  answer  admits  an  agreement,  though  but  a  parol 
one,  the  defendant  must  plead  the  statute  in  order  to  avail  himself  of  it; 
for  otherwise  he  is  taken  to  have  admitted  an  agreement,  which  either  is 
good  under  the  statute,  or  on  some  other  ground  is  binding  upon  him.(m) 
Q  *§  338.  For  some  time  the  court  was  disposed  to  allow  the 
L  "^  -I  plaintiff  the  benefit  of  the  admission,  notwithstanding  the  de- 
fendant's insisting  on  the  statute :  but  in  later  times  the  court  has  in- 
clined against  it,r«)  and  it  is  now  well  established  that  the  defendant, 

(ff)  Per  Lord  Cranworth  in  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.  691. 

(A)  Child  V.  Godolphin,  1  Dick.  39,  before  Lord  Macclesfield. 

(i)  Whitchurch  v.  Bevis,  2  Bro.  C.  0.  559 ;  S.  C.  2  Dick.  664.  See  also  Hosier 
V.  Read,  9  Mod.  86 ;  Moore  v.  Edwards,  4  Ves.  23 ;  Bowers  v.  Cator,  4  Ves.  91  ; 
Evans  v.  Harris,  2  V.  &  B.  361. 

(k)  Whitbread  v.  Brockhurst,  1  Bro.  C.  C.  404;  and  see  Belt's  n.  and  Redes. 
Plead.  268.  See  also,  as  to  this  plea.  Child  v.  Comber,  3  Sw.  423,  n.;  for  a  plea 
to  a  pai-ol  agreement  varying  a  written,  Jordan  v.  Sawkins,  3  Bro.  C.  C.  388;  and 
for  a  plea  alleging  revocation  of  agency,  Mason  v.  Armitage,  13  Ves.  25. 

(l)  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.  Gil ;  S.  C.  in  D.  P.  6  Ho.  Lords,  238. 

(m)  iS.  C.  Croyston  v.  Banes,  Prec.  Ch.  208  ;  Symondson  v.  Tweed,  id.  374. 

(n)  Per  Lord  Eldon  in  'Ex  parte  Whitbread,  19  Ves.  212. 


STATUTE    OF    FRAUDS,    ETC.  123 

notwithstanding  his  admission,  is  entitled  to  the  full  benefit  of  the     /  ( 
statute. (o) 

§  339.  But  if  the  defendant  wishes  to  avail  himself  of  the  statute,  he 
must  do  so  at  the  same  time  that  he  admits  the  agreement :  so  that  where 
the  answer  to  the  original  bill  admitted  the  agreement,  and  submitted  to 
perform  it,  and  the  answer  to  the  amended  bill  relied  on  the  statute  as 
a  defence,  that  was  overruled  :(p)  and  so,  too,  where  the  answer  does 
not  claim  the  benefit  of  the  statute,  it  cannot  be  had  by  claim  at  the 
hearing.  (^</) 

§  340.  The  answer  must  distinctly  claim  it :  so  that  where  the  answer 
alleged  that  no  formal  note  of  the  agreement  was  made,  and  denied  that 
any  binding  agreement  ever  existed,  but  did  not  expres,sly  claim  the 
benefit  of  the  statute,  the  defendant  was  held  to  be  disentitled  to  it.(r) 
It  is  not  necessary  that  the  defendant  should  "  claim  the  benefit  in  the 
very  words  of  the  statute,  but  he  must  claim  it  in  words  equivalent,  so 
as  to  call  the  attention  of  the  plaintiff  to  the  circumstance  that  the  benefit 
of  the  statute  is  claimed. "(.s) 


§  341.  The  object  of  the  Statute  of  Frauds  being  to  prevent  the  mis- 
chief arising  from  the  resort  to  parol  evidence  to  prove  the  existence  and 
the  terms  of  the  alleged  ^agreement  in  the  cases  specified  in  it,  p^,  ^^-. 
it  is  obvious  that  the  mischief  is  avoided  wherever  there  exists,  L  -I 
under  the  hand  of  the  party  sought  to  be  charged,  a  written  statement, 
containing,  either  expressly  or  by  necessary  inference,  all  the  terms  of 
the  agreement, — that  is  to  say,  the  names  of  the  parties,  the  subject- 
matter  of  the  contract,  the  consideration  and  the  promise, (A  and  leaving 
nothing  open  to  future  treaty. («)  This  therefore  is  sufficient  to  satisfy 
the  statute,  and  provided  this  be  found,  no  formality  is  required,  nor 
does  it  signify  at  all  what  is  the  nature  or  character  of  the  document  con- 
taining such  written  statement, — whether  it  be  a  letter  written  by  the 
party  to  be  charged  to  the  person  with  whom  he  contracted,  or  to  any 
other  person,  or  a  deed,  or  other  legal  instrument,  or  an  answer  to  a  bill, 
or  an  affidavit  in  chancery,  in  bankruptcy,  or  in  lunacy. («) 

§  342.  But  there  is  of  course  no  binding  agreement  when  the  writing 
appears  only  to  be  terms  agreed  on  as  a  basis  for  an  agreement,  and  not 
the  agreement  itself  jfioj  or  where  it  provides  that  any  of  the  terms  are 
afterwards  to  be  settled, (z)  or  where  the  matter  is  uncoucluded,  and  one 
party  may  still  withdraw  his  consent  ;(y)  or  where  there  appears  any 

(o)  Cooth  V.  Jackson,  6  Ves.  12  ;  Moore  v.  Edwards,  4  Yes.  23  ;  per  Lord  Eldon, 
in  Rowe  v.  Teed,  15  Ves.  375  ;  Blagden  v.  Bradbear,  12  Yes.  46G.  See  contra, 
Mussell  V.  Cooke,  Prec.  Ch.  533. 

(;))  Spurrier  v.  Fitzgerald,  6  Yes.  548;  Beatson  v.  Nicholson,  6  Jur.  621. 

[q)  Baskett  v.  Cafe,  4  De  G.  &  Sm.  388. 

\r)  Skinner  v.  M'Douall,  2  De  G.  &  Sm.  265. 

(s)   Per  Wigram,  Y.  C,  in  Beatson  v.  Nicholson,  6  Jur.  621. 

U)  Laythoarp  v.  Bryant,  2  Bing.  N.  G.  T35. 

\u)  Ogilvie  V.  Foljambe,  3  Mer.  53.         {v)  Barknorth  v.  Young,  4  Drew,  c.  13. 

(%v)  Frost  v.  Moulton,  21  Beav.  596.     See  §  203  et  seq. 

\x)  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41. 

{y)  Lord  Glengal  v.  Barnard,  1  Ke.  760,  affirmed  as  Lord  Glengal  v.  Thynne, 
Sug.  Law  of  Prop.  56. 


124       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

design  of  further  negotiation. (t)  Therefore  where  the  purchaser's  soli- 
citor offered  £25,000  for  the  purchase  of  an  estate,  which  the  defendant's 
agent  accepted,  <' subject  to  the  terms  of  a  contract  being  arranged  be- 
tween his  (the  vendor's)  solicitor  and  yourself,"  the  court  considered  this 
as  in  the  light  of  a  contract  to  enter  into  a  contract  with  respect  to  which 
some  terms  were  already  agreed  on,  and  the  rest  were  to  be  settled  by 
future  arrangements,  and  that  if  they  could  be  agreed  on,  this  was  to 
r*irm  ^become  a  valid  contract:  but  such  an  agreement  never  having 
L  J  been  come  to,  the  court  dismissed  the  purchaser's  bill  asking  for 
a  specific  performance. (a)  It  seems  to  be  on  this  principle  that  the 
approval  of  a  draft  does  not  of  itself  constitute  an  agreement. (^) 

§  343.  The  court  will  refuse  to  act  even  where  it  only  "rests  reason- 
ably doubtful  whether  what  passed  was  only  treaty,  let  the  progress 
towards  the  confines  of  agreement  be  more  or  less. "(c) 

§  344.  But  the  mere  fact,  though  appearing  on  the  paper,  that  a  more 
formal  agreement  is  intended  to  be  drawn  up,  will  not  prevent  a  paper 
duly  signed  and  containing  all  the  terms  from  being  an  agreement,  any 
more  than  will  be  a  reference  to  deeds  thereafter  to  be  executed. ((/) 
Therefore  where  A.  wrote  to  B.,  "I  offer  you  £3000  for  the  estate,"  and 
B.  replied,  "I  accept  your  offer,  and  if  you  approve  of  the  enclosed,  sign 
the  same,  and  I  will  on  receipt  of  the  deposit  sign  you  a  copy"  (the  en- 
closure was  not  produced,)  the  court  held  that  there  was  a  binding  con- 
tract, and  treated  the  enclosure  as  a  mere  means  of  carrying  that  contract 
into  effect  :(t)  and  in  another  case,(/)  a  correspondence  about  the  taking 
of  a  house  was  held  to  constitute  a  sufficient  agreement,  though  the  agent 
of  the  lessor  accepted  the  offer  thus,  "These  terms  I  have  submitted  to 
Mrs.  S.,  and  I  am  authorized  to  say  they  are  accepted,  and  that  her 
solicitor  will  draw  up  a  proper  agreement  for  signature,  which  I  will  for- 
ward to  you." 

§  345.  But  wherever  the  formal  agreement  contemplated  *is 
L  -I  to  be  anything  more  than  merel}^  ancillary  to  the  real  agreement, 
— wherever  any  new  term  might  be  introduced  into  the  formal  agree- 
ment not  contained  in  the  earlier  one,  the  first  document  will  not  be 
binding.  And  wherever  the  conclusive  nature  of  the  arrangement  does 
not  evidently  appear  on  the  writings,  the  fact  that  a  subsequent  and 
more  formal  agreement  was  intended  to  be  entered  into  will  be  strong 
evidence  that  the  previous  negotiations  were  not  intended  to  amount  to 
an  agreement. (</) 

§  346.  The  statute  requiring  that  the  agreement,  or  the  memorandum, 
or  note  thereof,  shall  be  signed  by  the  party  to  be  charged  therewith,  or 

(z)  Tawney  v.  Crowther,  3  Bro.  C.  C.  318  ;  Stratford  v.  Bosworth,  2  V.  &  B.  341. 
(a)  Honeyinan  v.  Marryat,  21  Beav.  4  ;  S.  C.  6  Ho.  Lords,  112. 
(6)  Doe  d.  Lambouru  v.  Pedgriph,  4  Car.  and  P.  312. 

(c)  Per  Lord  Eldon  in  Huddleston  v.  Briscoe,  11  Ves.  592. 

(d)  Fowle  V.  Freeman,  9  Ves.  351.  See  per  Lord  Cranwortli  in  Ridgway  v. 
Wliarton,  6  Ho.  Lords,  2G4 ;  per  Lord  Langdale  in  Tliomas  v.  Bering,  1  Ke.  741  ; 
Cowley  V.  Watts,  17  Jur.  172,  (M.  R.)     See  ante,  ^  175. 

(e)  Gibbins  v.  North-eastern  Metropolitan  District  Asylum,  11  Beav.  1. 
(/)  Skinner  v.  M'Douall,  2  De  G.  &  Sm.  265. 

{(/)  Ridgway  v.  Wliarton,  G  Ho.  Lords,  238,  particularly  268,  305. 


STATUTE    OF    FRAUDS,    ETC.  125 

his  agent,  and  not  by  both  parties  to  the  contract,  it  has  been  held  both 
in  the  courts  of  equity(/()  and  law,(/)  that  a  signature  by  the  party 
against  whom  the  contract  is  souglit  to  be  enforced  is  sufBcient. 

§  347.  All  that  is  requisite  to  satisfy  the  statute  as  to  the  signature 
of  the  agreement  is,  that  the  name  be  inserted  by  the  party  in  such  a 
manner  as  to  authenticate  the  instrument;  accordingly,  a  letter  beginning 
'<  Mr.  Foljambe  presents  his  compliments"  was  held  duly  signed. (7c) 
The  same  was  the  case  where  A.  wrote  "A.  has  agreed,"  etc.  ;(^)  and 
where  B.  wrote  "  A.  agreed  with  B.,"  etc.(w)  An  affidavit  made  by  a 
person  has  been  also  held  sufficient. (?«) 

§  348.  It  cannot  be  denied  that  there  is  some  conflict  of  authority  on 
the  question  how  far  the  writing  of  his  name  by  the  party  must  be  with 
the  intent  of  signing.  In  some  eases  it  has  been  held  that  such  a  writ- 
ing with  a  different  intent,  amounts  to  a  signature ;  as  where  a  party 
*has  written  his  name  at  the  beginning,  and  left  a  place  for  his  ^^^„^-. 
signature  at  the  bottom,  and  thus  shown  "  that  the  insertion  of  L  "-• 
the  name  at  the  beginning  was  not  intended  to  be  a  signature,  and  that 
the  paper  was  meant  to  be  incomplete  until  it  was  further  signed  ^"(c) 
and  where  a  person  who  is  a  party  or  principal,  or  person  to  be  bound, 
signs  as  a  witness,  which  he  cannot  be,  he  has  been  held  to  have  signed 
as  a  principal. (p)  In  other  cases  the  court  has  had  regard  to  the  inten- 
tion of  the  signature  ;  the  Court  of  Queen's  Bench,  on  this  ground,  held 
that  a  person  capable  of  being  a  witness,  and  signing  as  such,  will  not 
be  bound  by  the  instrument  as  a  party,  or  as  agent  of  a  party  i^j)  and 
where  the  names  were  written  at  the  beginning  of  an  agreement  which 
concluded  with  the  words  "  as  witness  our  hands,"  and  no  signatures 
followed,  it  was  considered  by  the  common  pleas  not  to  satisfy  the  sta- 
tute, because  the  concluding  words  evidently  showed  an  intention  that 
the  agreement  should  be  signed  at  the  foot.fr) 

§  349.  And  it  seems  clear  that  where  the  name,  though  written  by 
the  party,  has  been  introduced  for  some  particular  purpose  in  the  middle 
of  a  writing,  as  in  the  memorandum  for  a  lease  in  the  words  <<  the  rent 
to  be  paid  to  A.,"  that  does  not  amount  to  a  signature  by  A.(s) 

§  350.  The  signature  must  be  the  actual  writing  of  the  name,  or  the 
doing  of  some  act  intended  by  the  person  to  be  equivalent  to  the  actual 

(h)  See  ante,  ?  295. 

(i)  Egerton  v.  Mathews,  6  East,  307;  Allen  t.  Bennet,  3  Tannt.  169;  Laythoarp 
V.  Bryant,  2  Bing.  X.  C.  735.  See  the  editor's  n.  to  Sweet  v.  Lee,  3  Man.  &  Gr. 
4G2. 

(k)  Ogilvie  v.  Foljambe,  3  Mer.  53. 

(/)  Propert  v.  Parker,  1  R.  &  My.  625.  See  also  Western  r.  Russell,  3  V.  &  B. 
187;  Morison  v.  Turnonr,  18  Yes.  175. 

(m)  Bleakley  v.  Smith,  11  Sim.  150.  (n)  Barkworth  v.  Young,'  4  Drew,  1. 

(o)  Per  Lord  Eldon  in  Saunderson  v.  Jackson,  2  B.  &  P.  239 ;  Knight  v.  Crock- 
ford,  1  Esp.  190. 

(p)  Welford  v.  Beazely,  3  Atky.  503;  Coles  v.  Trecothick,  9  Ves.  234,  251. 

(q)  Gosbell  v.  Archer,  2  A.  &  E.  500,  where  the  court  doubted  the  doctrine  of 
Lord  Eldon  in  Coles  v.  Trecothick ;  but  see  the  observations  of  Lord  St.  Leonards, 
Vend.  116. 

(r)  Hubert  v.  Treherne,  3  Man.  &  Or.  743;  S.  C.  s.  n.  Hubert  v.  Turner,  4  Scott. 
N.  S.  486. 

(«)  Stokes  v.  Moore,  1  Cox,  219;  Hawkins  v.  Holmes,  1  P.  Wms.  770. 

November,  1858. — 9 


126      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

signature  of  the  name,  such  as  a  mark  by  a  marksman.  Therefore  a 
letter  beginning  "  My  dear  Robert,"  and  concluding  with  the  words 
j-^^pr,-.  ''  Do  me  *the  justice  to  believe  me  the  most  aifectionate  of  mo- 
L         -I  thers,"  was  held  not  to  be  signed  within  the  statute. (?) 

§  351.  A  signature  in  pencil  is  not  necessarily  deliberative,  and  may 
be  equally  binding  within  the  statute  as  one  in  ink.(i!)  And  even  a  print- 
ed name  may  avail ;  so  that  where  a  vendor  inserted  in  a  printed  invoice 
with  his  name  on  it,  the  name  of  the  purchaser,  it  was  held  that  there 
was  such  a  ratification  and  adoption  of  the  printed  name  as  made  it  a 
signature,  and  satisfied  the  statute. (v) 

§  352.  It  seems  that  the  setting  down  of  the  initials  may  be  a  sufficient 
signature.  (?f) 

§  353.  Where  the  agreement  purports  to  be  signed  by  an  agent,  it 
must  be  alleged  and  distinctly  proved  by  the  plaintifi^  that  the  party  who 
signed  as  agent  was  authorized  to  act  as  agent,  not  merely  for  the  purpose 
of  negotiating,  but  of  concluding  a  binding  contract. (j,)  the  court  has, 
when  needful,  directed  an  issue  to  try  the  question  of  agency  when  in 
contest  between  the  parties. (y)  The  authority  may  be  inferred  by  the 
court  from  the  relation  and  conduct  of  the  parties  :(.?)  or  the  alleged  princi- 
pal, though  he  may  have  given  no  authority  to  the  alleged  agent,  may, 
by  representing  that  he  has  done  so  to  the  other  party  to  the  contract, 
estop  himself  from  afterwards  denying  it. (a) 

§  354.  The  statute  is  silent  as  to  the  means  by  which  the  agent  is  to 
r*iftn  ^^  appointed  :  it  does  not  therefore  require  ^writing,  but  may, 
L  J  except  in  the  case  of  corporations,  be  by  parol  ;(t)  and  accordingly 
the  authority  of  an  agent  to  let  lands,  or  otherwise  deal  with  real  estate, 
may  be  inferred  from  acts  and  letters,  or  other  circumstances. (c) 

§  355.  To  this  agency,  as  to  any  other  authority,  the  maxim  applies, 
omnis  ratihabitto  retrotrahitur  ct  mandato  cequiparatui-,  and  therefore 
the  subsequent  ratification  of  a  contract  entered  into  by  a  person  then 
unauthorized  as  agent,  takes  it  out  of  the  statute. ((Z)  This  ratification 
need  not  be  by  any  express  act ;  it  is  enough  if  the  party  whose  authori- 
ty is  required  takes  the  benefit  of  the  contract,  or  even  if,  with  a  full 
knowledge  of  it,  he  passively  acquiesced  in  it  for  a  length  of  time  longer 

(l)  Selby  V.  Selby,  3  Mer.  2.  (w)  Lucas  v.  James,  1  Ila.  410,  419. 

(y)  Schneider  v.  Norris,  2  M.  &  S.  286;  per  Lord  Eldon  in  Saunderson  v.  Jack- 
son, 2  B.  &  P.  239.  See  also  1  Mad.  Cb.  376,  and  the  illustration  there  given  from 
the  stamping  of  Letters  Patent  by  King  William  IIL 

(w)  Selby  v.  Selby,  Sug.  Vend!  116. 

[x)  Blore  v.  Sutton,  3  Mer.  237;  PJdgway  v.  Wharton,  3  De  G.  M.  &  G.  677;  S. 
C.  6  Ho.  Lords,  238,  where  the  evidence  of  agency  was  full}'  discussed;  Firth  v. 
Greenwood,  1  Jur.  N.S.  806,  (Wood,  V.  C.) 

(y)  Howard  v.  Braithwaite,  1  V.  &  B.  202. 

(z)  Sharp  v.  Milligan,  22  Bear.  606. 

(a)  Ridgway  v.  Wharton,  6  Ho.  Lords,  238,  297. 

(6)  Waller  v.  Hendon,  5  Vin.  Abr.  524,  pi.  45  ;  Coles  v.  Trecothick,  9  Vcs.  234, 
250;  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22.  As  the  agent  of  joint  stock  companies, 
see  19- &  20  Vict.  c.  47,  s.  41. 

(c)  Dyas  v.  Cruise,  2  Jon.  &  Lat.  461. 

{d)  Maclean  v.  Dunn,  4  Bing.  722;  Ridgway  v.  Wharton,  6  IIo.  Lords,  238,  296. 


STATUTE    OF    FRAUDS,    ETC.  127 

than  that  reasonably  to  be  allowed  for  the  expression  of  dissent. (c)  But 
it  will  not  be  implied  from  vague  expressions  to  a  third  person. (/) 

§  356.  The  authority  may  be  revoked  at  any  time  before  execution, 
and  such  revocation  may  of  course  be  proved  by  parol. (y) 

§  357.  It  is  now  clearly  decided  that  at  sales  by  auction,  auctioneers 
are  agents  of  the  purchaser  as  well  as  of  the  vendor.(A)  This  conclusion 
seems  arrived  at  from  the  necessity  of  the  case,  and  the  peculiar  nature 
of  the  mode  of  sale;(«')  and  therefore  when  the  necessity  does  not  exist, 
as  in  a  subsequent  purchase  in  private  from  the  auctioneer,  no  such  agency 
arises,  (/i-) 

*§  358.  The  clerks  of  agents  are  not  generally  agents  for  the  r:}:-ip--| 
principal ;  but  evidence  of  assent  on  the  part  of  the  principal  that  •-  -■ 
they  shall  act  as  such  will  consitute  them  agents  :(/)  and  on  the  principle 
of  necessity  or  convenience,  it  has  been  held  that  the  clerk  of  an  auc- 
tioneer entering  the  names  of  the  purchasers  at  the  sale  in  a  book,  was 
an  agent  for  the  purchasers,  (w) 

§  359.  A  solicitor  employed  in  a  marriage  treaty,  who  drew  up  a  min- 
ute of  the  arrangement  came  to  at  an  interview,  was  held  not  to  be  an 
agent  lawfully  authorized  to  bind  the  parties,  so  as  to  make  the  insertion 
of  their  names  in  the  minute  a  signature  with  the  statute. (n) 


§  360.  It  is  very  frequently  the  case  that  letters  between  the  parties 
are  relied  on,  to  prove  a  written  contract.  Sometimes  (1)  there  is  an 
unsigned  writing  containing  all  the  terms  of  the  contract,  and  the  letters 
are  adduced  as  incorporating  that  writing,  and  furnishing  the  signature 
of  one  or  both  of  the  parties ;  (2)  sometimes  they  are  adduced  where  the 
written  contract  is  incomplete  in  one  or  more  of  its  terms,  and  the  letters 
are  referred  to,  to  supplement  the  defect;  and  (3)  sometimes  they  are 
adduced  as  themselves  constituting  the  contract. (oj 

§  361.  (1)  In  order  to  make  a  contract  binding  under  the  Statute  of 
Frauds,  it  is  not  necessary  that  it  should  be  all  contained  in  one  paper, 
signed  by  the  party ;  but  the  terms  of  the  contract  may  be  contained  in 
one  paper,  and  the  signature  maybe  found  in  some  other  paper,  provided 
that  such  second  paper  refer  to  the  paper  which  does  contain  the  terms. (/A 

(e)  Bigg  V.  Strong,  Week.  Rep.  1857-1858,  173,  (Stuart,  V.  C.) 

(f)  Ridgway  v.  Wharton,  6  Ho.  Lords,  238. 

(g)  Manser  v.  Back,  6  Ha.  443. 

(h)  Emmerson  v.  Heelis,  2  Taunt.  38 ;  White  v.  Proctor,  4  Taunt.  209  ;  Kemevs 
V.  Proctor,  3  V.  &  B.  57 ;  S.  C.  1  J.  &  W.  350 ;  Buckmaster  v.  Harrop,  7  Yes.  34*1: 
S.  C.  13  Ves.  456;  Kenworthy  v.  Schofield,  2  B.  &  C.  945  ;  of.  Bartlett  v.  Purnell 
4  A.  &  E.  792. 

(i)  Gosbell  V.  Archer,  2  A.  &  E.  500;  per  Lord  Langdale  in  Lord  Glengal  v. 
Barnard,  1  Keen,  788,  affirmed  in  D.  P.  as  Lord  Glengal  v.  Thynne,  Sudg.  Law  of 
Prop.  56. 

(k)  Mews  V.  Carr,  26  L.  J.  Ex.  39.  (t)  Coles  v.  Trecothick,  9  Ves.  234 

(to)  Bird  V.  Boulter,  4  B.  &  Ad.  443. 

(n)  Lord  Glengal  v.  Barnard,  1  Keen,  769,  affirmed  in  D.  P.  See  also  De  Bicl 
V.  Thomson,  3  Beav.  469, 

(o)  See  infra,  g  374. 

(p)  Allen  V.  Bennet,  3  Taun.  169 ;  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.  677  ; 
S.  C.  6  Ho.  Lords,  238.     See  also  per  Lord  Eldon  in  Coles  v.  Trecothick,  9  Ves. 


128      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

pp-i  I*-  seems  to  be  necessary  that  tliere  should  be  *a  reference  on  the 
L  J  face  of  the  paper  containing  the  signature  to  the  paper  contain- 
ing: the  terms  ;  but  as  to  the  ascertainment  and  identification  of  the  ac- 
tual  paper  thus  referred  to,  parol  evidence  is  admissible  •,(^q)  for  it  is  a  thing 
collateral  to  the  contract,  and  which  cannot  be  contained  in  the  contract 
itself:  just  as  in  the  case  of  a  bequest  in  a  will,  the  thing  given  and  the 
person  to  whom  it  is  given  must  be  mentioned  in  the  instrument,  but 
the  actual  identification  of  the  thing  and  the  person  must,  from  the  na- 
ture of  the  case,  be  dehors  the  instrument,  and  therefore  a  matter  of  parol 
evidence.  ()•) 

§  362.  We  have  seen  that  there  must  be  a  reference  :  therefore,  where 
the  agreement  made  no  reference  to  an  advertisement  respecting  the  pro- 
perty which  was  sought  to  be  introduced  to  supply  a  term,  it  was  held 
that  this  could  not  be  done  :(.s)  and  so  also,  the  mere  admission  in  writing 
of  an  agreement,  without  ascertaining  its  terms,  is  inoperative. («) 

§  363.  Again,  the  reference  must  be  to  terms  in  writing  :  therefore 
where  a  writing  duly  signed  referred  not  to  a  writing  but  to  terms  ar- 
ranged by  parol,  there  was  no  valid  contract. (?<) 

§  364.  In  Tawney  v.  Crowther,(i')  the  agreement  was  reduced  into 
writing,  and  was  in  possession  of  the  defendant,  who,  in  answer  to  a  letter 
from  the  plaintiif's  solicitor,  asking  him  to  meet  him  and  sign  the  agree- 
ment, wrote  a  letter,  in  which  he  mentioned  his  having  been  from  home, 
acknowledged  having  said  his  word  should  be  as  good  as  his  bond,  and 
that  there  was  time  enough  before  Michaelmas  to  settle  everything;  and 
•  ,  P-r-i  again  said  "  that  his  word  *should  always  be  as  good  as  any  seeu- 
L  -I  rity  he  could  give  :"  Lord  Thurlow,  first  on  plea  of  the  statute, 
and  subsequently  on  the  answer  which  insisted  on  the  statute,  held  that 
the  letters  and  the  paper  together  constituted  a  valid  agreement.  "  If  a 
letter  cannot  be  referred  to  the  agreement,"  said  his  lordship, (tr)  "  or 
does  not  contain  proper  terms,  I  cannot  treat  it  as  out  of  the  statute  ;  but 
I  confess,  on  what  appears  here,  the  papers  do  refer  to  that  agreement, 
and  contain  a  promise  to  perform  it ;  the  defendant  did  intend  by  the 
letter  to  raise  a  confidence  that  the  agreement  should  be  performed." 
Lord  Redesdale  has  expressed  his  disapprobation  of  this  case,  consider- 
ing that  the  promise  was  intended  to  be  of  an  honorary  and  not  of  a  legal 
and  binding  nature  (.x)  and  the  correctness  of  the  decision  has  been  ques- 
tioned by  Lords  Cranworth  and  Brougham  in  the  recent  case  of  Ridgway 
V.  Wharton. (y) 

§  365.  In  another  case,(2;)  the  defendants'  letters  referred  distinctly 
to  the  conditions  of  sale  which  were  in  their  hands,  signed  by  the  plain- 

250  ;  Gaston  v.  Frankum,  2  De  G.  &  Sm.  5C1 ;  Powell  v.  Dillon,  2  B.  &  Beatty, 
416. 

(g)  Per  Lord  Redesdale  in  Clinan  v.  Cooke,  1  Sch.  &  Lef.  33. 

(r)  See  ante,  §  209.  (s)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22. 

(t)  Rose  V.  Cunynghame,  11  Ves.  550 ;  Clerk  v.  Wright,  1  Atky.  12. 

(m)  Ridgway  v.  Wharton,  3  De  G.  M.  &  G.  G77;  S.  C.  6  Ho.  Lords,  238. 

(v)  3  Bro.  C.  C.  IGl,  318.  (w)  p.  320. 

(z)  See  Belt's  n.  3  Bro.  C.  C.  153. 

(?/)  6  Ho.  Lords,  265,  271.     See  per  Lord  St.  Leonards,  S.  C.  293. 

(z)  Dobell  V.  Hutchinson,  3  A.  &  E.  355.  See  also  Saunderson  v.  Jackson,  2  B. 
&  P.  238,  and  Jackson  v.  Lowe,  1  Bing.  9. 


STATUTE    OF    FRAUDS,    ETC.  129 

tiflP,  and  tlic  Court  of  Queen's  Bench  lield  that  no  parol  evidence  was 
necessary  to  connect  the  two,  and  consequently  that  there  was  a  binding 
contract.  And  in  a  recent  casc,(aj  where  A.  wrote  to  B.,  proposing  to 
let  a  public-house  on  certain  terms,  and  B.'s  clerk  met  A.  and  discussed 
the  terms  of  the  lease,  and  afterwards  B.  replied  that  he  was  willing  to 
take  the  premises  of  A.,  this  was  held  to  refer  to  the  terms  contained  in 
A.'s  letter,  and  to  constitute  a  contract. 

§  3GG.  (2)  Again,  letters  may  be  used  to  supply  a  term  wanting  in  an 
agreement :  thus,  where,  in  an  agreement,  the  lessor's  name  was  not 
mentioned,  and  subsequently  a  letter  from  the  lessee,  referring  to  this 
agreement,  mentioned  his  name  in  a  manner  from  which  the  court  could 
*imply  that  he  was  lessor,  it  was  held  a  sufficient  agreement. (i)  r^icoT 

§  367.  (3)  Letters  may  of  course  themselves  constitute  the  L  -• 
agreement;  and  the  cases  in  which  a  contract  is  thus  constituted  by  cor- 
respondence between  the  parties  are  very  numerous  ;  many  of  them  have 
been  already  discussed. (c) 

§  3G8.  The  contract  may  even  be  sufficiently  evidenced  by  a  letter 
addressed  to  a  third  person,  provided  it  ascertain  the  term  of  the  agree- 
ment.(«^Z) 

§  3G9.  It  is  desirable  to  consider  the  eflFect  of  letters  which  repudiate 
or  disown  a  contract  referred  to  in  them.  The  subject  was  discussed  in 
the  recent  case  of  Warner  v.  Willington,(e)  before  Vice-Chancellor  Kin- 
dersley :  in  that  case  there  was  a  memorandum  for  a  lease,  signed  by  the 
defendant,  the  proposed  lessee,  but  deficient  in  the  lessor's  name,  and 
then  a  letter  by  the  defendant,  withdrawing  the  memorandum,  but  re- 
ferring to  the  lessor's  name  :  and  the  vice-chancellor  held  that  the  letter 
supplied  the  original  defect  in  the  agreement,  and  converted  it  into  one 
binding  under  the  statute.  It  may  be  submitted  that  this  decision  is 
not  without  difficulties  on  principle ;  for  it  would  seem  that  the  whole 
letter  must  be  looked  at,  and  then  that  affirms  the  memorandum  to  be, 
what  in  fact  without  the  letter  it  was,  namely,  a  mere  offer;  and,  fur- 
ther, the  case  appears  difficult  to  reconcile  with  other  decisions.  Thus, 
where  buyers  have  written  letters  distinctly  referring  to  invoices  of  the 
goods,  but  insisting  that  they  were  not  bound  to  accept  the  goods,  and 
thus  repudiating  the  contract,  the  courts  have  held  that  there  is  no 
sufficient  writing  within  the  17th  section  of  the  Statute  of  Frauds :(/) 
and  in  a  recent  case(f7)  in  the  exchequer,  in  which  Warner  *v.  r:t:-i/>Q-i 
Willington  was  cited,  the  court  considered  that  it  would  be  treat-  L  J 
ing  the  Statute  of  Frauds  as  nothing,  if  a  letter,  merely  declining  to 
accept  goods  under  a  parol  agreement  or  an  insufficient  written  agree- 
ment, were  held  to  take  the  case  out  of  the  statute.     And  again,  in  a 

(a)  Wood  V.  Scarth,  2  K.  &  J.  33.     ' 

(b)  Warner  v.  Willington,  3  Drew,  523.     See  this  case  infra,  §  369. 

(c)  See  ante,  ?  1G9  et  seq.     See  also  Western  v.  Russell,  3  V.  &  B.  187. 

(d)  Per  Lord  Hardwicke  in  Welford  v.  Beazely,  3  Atky.  503;  Child  v.  Comber, 

3  Sw.  423,  n. ;  Seagood  v.  Meale,  Prec.  Ch.  560.     See  also  Barkworth  v.  Young, 

4  Drew,  1,  particularly  13. 

(e)  3  Drew,  523. 

(/)  Cooper  V.  Smith,  15  East,  103  ;  Richards  v.  Porter,  6  B.  &  C.  437  ;  per  Lord 
Dcnman  in  Dobell  v.  Hutchinson,  3  A.  &  E.  371 ;  Gosbellv.  Archer,  2  A.  &  E.  500. 
(y)  Goodman  v.  Griffiths,  26  L.  J.  Ex.  145. 


130      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

recent  case  in  chancery,(A)  Lord  Justice  Turner  treated  tlie  argument, 
that  a  letter  declining  to  enter  into  an  agreement  could  constitute  one, 
as  too  strained  to  require  any  observation. 


§  370.  It  is  now  distinctly  settled,  after  some  difference  of  opinion, 
that  a  written  agreement  after  marriage,  in  pursuance  of  a  parol  one  be- 
fore, takes  the  case  out  of  the  statute. (?") 

§  371.  With  regard  to  the  mode  in  which  an  agreement  within  the 
statute  should  be  pleaded,  it  is  sufficient  to  allege  that  the  agreement 
was  in  writing,  without  alleging  that  it  was  signed ;  for,  if  it  was  not 
signed,  there  was  no  agreement. (/i-)  And  where  the  plaintiiT  relied  on 
an  affidavit  alleged  to  have  been  filed  by  the  defendant,  containing  the 
terms  of  the  agreement,  his  signature  to  the  affidavit,  though  not  alleged 
was  presumed  by  the  court,  as  an  affidavit  must  be  signed  as  well  as 
sworn. (?) 

§  372.  But  it  is  not  enough  to  allege  an  agreement  without  stating 
that  it  was  in  writing ;  for  a  parol  agreement  is  still  an  agreement,  and  a 
bill  merely  alleging  on  agreement  is  therefore  open  to  demurrer. (?)i) 
r*i7m  *§  ^^^"  ^^^  allegation  that  the  agreement  was  in  writing 
L  J  is  not  of  such  materiality  that  it  must  be  proved ;  so  that  an 
agreement  so  alleged  will  be  sufficiently  established  by  an  admission  in 
the  answer  of  a  parol  agreement. (w) 

§  374.  There  is  a  distinction  between  pleading  letters,  as  constituting 
the  agreement,  and  as  evidence  only  of  the  agreement :  in  the  former 
ease,  no  other  evidence  than  the  letters  themselves  can  be  admitted — so 
that,  if  they  do  not  contain  all  the  terms  of  the  agreement,  the  bill  will 
be  dismissed;  whereas  in  the  latter  case,  other  evidence  may  be  admit- 
ted, (o) 

§  375.  Courts  of  equity,  hold  that,  notwithstanding  the  express  lan- 
guage of  the  statute,  a  case  may  be  taken  out  of  its  operation  by  any  one  of 
the  following  circumstances  : — (1)  by  the  sale  being  by  the  court,  (2)  by 
an  admission  in  the  answer  of  a  parol  agreement  where  the  answer 
does  not  insist  on  the  statute,  (3  j  by  fraud,  and  (4)  by  a  parol  agreement 
and  part  performance,  which  is,  as  we  shall  see,  but  a  particular  case  of 
fraud. 

§  376.  (1)  It  has  been  held  that  a  sale  before  a  master  confirmed  by 
the  court,  was,  from  the  judicial  character  of  the  proceedings,  exempted 

(A)  Wood  V.  Midgley,  5  De  G.  M.  &  G.  41,  46. 

(i)  Taylor  V.  Beech,  1  Ves.  Sen.  297 ;  per  Lord  Cottenbam  in  Hammersley  r. 
De  Biel,  12  CI.  &  Fin.  64,  n.  ;  per  Turner,  L.  J.,  in  Surcome  v.  Pinniger,  2  De  G. 
M.  &  G.  575;  Barkworth  v.  Young,  4  Drew,  1.  See  also  Hodgson  v.  Hutchenson, 
.")  Vin.  Abr.  522,  pi.  34.  In  Randall  v.  Morgan,  12  Ves.  67,  Sir  Wm.  Grant  ex- 
pressed doubts  on  this  point. 

(k)  Rist  V.  Ilobson,  1  S.  &  S.  543.  (/)  Barkworth  v.  Young,  4  Drew,  1. 

(m)  S.  C,  and  see  per  Lord  Tburlow  in  Whitchurch  v.  Bevis,  2  Bro.  C.  C.  559; 
per  Sir  W.  Grant  in  Spurrier  v.  Fitzgerald,  6  Ves.  555. 

(ra)  Spurrier  v.  Fitzgerald,  6  Ves.  548. 

(o)  Birce  v.  Bletchley,  G  Mad.  17;  ante,  ?  360. 


STATUTE    OF    FRAUDS,    ETC,  131 

from  the  Statute  of  Frauds  :{p)  and  consequently  might  be  enforced 
against  the  representative  of  a  purchaser  who  had  not  subscribed. (^y)  The 
same  rule  will  no  doubt  be  applied  to  sales  under  the  present  practice. (?■) 

§  '677.  (2)  An  admission  of  a  parol  agreement  in  the  defendant's  an- 
swer has  long  been  held  to  take  the  case  out  of  the  statute,  where  the 
answer  does  not  insist  on  the  *statute,  because  it  takes  it  out  of  1-^-171-1 
the  mischief  which  the  statute  was  designed  to  remedy. («)  An-  L  J 
other  reason  has  been  suggested,  namely,  that  the  contract,  though  ori- 
ginally in  parol,  is  after  admission  evidenced  by  writing  under  the  sig^ 
nature  of  the  party,  which  is  a  complete  compliance  with  the  terms  of 
the  statute. (<) 

The  efi'ectof  such  an  admission,  against  the  person  making  it,  is  clear  : 
and  it  seems  that  it  would  bind  the  heir  of  such  person,  in  case  of  his 
death,  and  a  bill  of  revivor  being  filed  against  the  heir.(«)  It  was  for- 
merly held  that  where  a  vendor  dies,  and  a  bill  is  brought  by  his  per- 
sonal representative  against  the  purchaser  and  the  heir  of  the  vendor, 
the  admission  by  the  purchaser  would  take  the  agreement  out  of  the 
statute,  not  only  against  the  purchaser  but  the  vendor's  heir.(r)  But 
that  is  not  now  the  law:  to  entitle  the  real  or  personal  representative  to 
enforce  the  execution  of  a  contract  to  the  prejudice  of  the  other,  there 
must  have  been  at  the  death  of  the  contractor  a  contract  by  which  he 
was  legally  bound,  and  which  the  court  would  have  compelled  him  speci- 
fically to  execute  :(w)  and  so,  notwithstanding  that  a  personal  represen- 
tative may  submit  to  can^y  out  the  contract,  it  is  open  to  the  parties 
interested  to  take  every  objection  which  the  deceased  might  himself  have 
taken,  if  living. (x) 

§  378.  (3)  The  principle  upon  which  the  court  considers  fraud  as  form- 
ing an  exception  to  the  statute,  has  been  stated  by  Lord  Eldon.  "  Upon 
the  Statute  of  Frauds,"  said  his  lordship,"(^)  <' though  declaring  that 
interests  shall  not  be  bound  except  by  writing,  cases  in  this  court  are 
*perfectly  familiar  deciding  that  a  fraudulent  use  shall  not  be  r:(:i-.>-i 
jnade  of  that  statute ;  where  this  court  has  interfered  against  a  L  ~J 
party  meaning  to  make  it  an  instrument  of  fraud,  and  said  he  should  not 
take  advantage  of  his  own  fraud,  even  though  the  statute  has  declared 
that  in  case  those  circumstances  do  not  exist,  the  instrument  shall  be 
absolutely  void.  One  instance  is  the  case  of  instructions  upon  a  treaty 
of  marriage  :  the  conveyance  being  absolute,  but  subject  to  an  agreement 
for  a  defeasance,  which,  though  not  appearing  by  the  contents  of  the 
conveyance,  can  be  proved  aliunde ;  and  there  are  many  other  instances.'' 

§  379.  Thus,  in  one  case,(2)  Lord  Thurlow  allowed  a  plaintiff  to  give 
parol  evidence  that,  at  the  time  the  agreement  was  entered  into,  an  un- 

(p)  Attorney-General  v.  Day,  1  Ves.  Sen.  218 ;  per  Sir  W.  Grant  in  Blagden  v. 
Bradbear,  12  Ves.  472  ;  per  Lord  Cottenham  in  Ex  parte  Cutts,  3  Deac.  267. 

{q)  Lordv.  Lord,  8  Sim.  503.  (r)  St.  Leonards,  Vend.  &  Pur.  86. 

(s)  Gunter  V.  Halsey,  Ambl.  586;  Limondson  v.  Sweed,  Gilb.  35.  See  the  re- 
marks on  this  doctrine  of  Lord  Rosslyn  in  Rondeau  v.  Wyatt,  2  H.  Bl.  68. 

(/)  Story,  Eq.  Jur.  s.  755.       (m)  Attorney- General  v.  Day,  1  Ves.  Sen.  218,  221. 

()')  Lacon  v.  Mcrtins,  3  Atky.  1.     See  also  Potter  v.  Potter,  1  Ves.  Sen.  437. 

(w)  Buckmaster  v.  Harrop,  7  Ves.  341 ;  S.  C.  13  Ves.  456. 

\x)  S.  C.  (?/)  In  Mestaer  v.  Gillespie,  11  Ves.  627,  628. 

{z)  Pember  v.  Mathers,  1  Bro.'C.  C.  52. 


132     FRY    ON    SPECIFIC    PERFOEMANCE    OF    CONTRACTS. 

dertaking  had  been  given  by  the  assignee  of  the  lease  to  the  assignor  for 
indemnity  against  the  rents  and  covenants,  his  lordship  laying  it  down 
<^that  where  the  objection  is  taken  before  the  party  execute  the  agree- 
ment and  the  other  side  promise  to  rectify  it,  it  is  to  be  considered  a 
fraud  on  the  party  if  such  promise  is  not  kept."(a)  And  in  a  case(i) 
which  occurred  before  Lord  Nottingham  soon  after  the  making  of  the 
statute,  there  was  a  parol  agreement  for  the  loan  of  money  on  a  mortgage 
by  an  absolute  conveyance  from  the  mortgagor,  and  a  defeasance  from 
the  mortgagee :  after  the  mortgagee  had  got  the  conveyance,  he  refused 
to  execute  the  defeasance,  but  was  decreed  to  do  so  on  the  ground  of 
fraud. 

§  380.  The  same  principle  has  been  considered  to  apply  to  marriage 
contracts.  In  Dundass  v.  Duteus,(t)  Lord  Thurlow  intimated  an  opinion 
that,  where  there  was  a  parol  agreement  for  a  settlement,  and  then,  in 
r^i-q-i  fraud  of  that  *agreement,  the  husband  gets  married,  he  will  be 
L  J  bound  by  the  agreement.  But  as  it  is  clear  that  marriage  by 
itself  is  no  part  performance, (r?)  and  as  the  doctrine  of  part  perform- 
ance is  only  part  of  the  principles  of  the  court  as  to  fraud  generally,  the 
case  seems  difficult  to  support,  (c) 

§  SSL  And  in  cases  of  wills  obtained  by  a  promise  to  dispose  of  the 
property  in  a  particular  way,  the  court  will,  notwithstanding  the  language 
of  the  Statute  of  Frauds  that  every  will  must  be  in  writing,  give  effect 
to  the  verbal  arrangement  by  raising  a  trust  on  the  property  devised  or 
bequeathed  by  the  will.(/) 

§  382.  It  was  formerly  thought,  that  alleging  it  to  have  been  part  of 
the  parol  agreement  between  the  contracting  parties  that  the  agreement 
should  be  reduced  into  writing,  would  take  the  case  out  of  the  statute, 
on  the  ground  of  fraud :  accordingly,  where  a  bill  containing  such  an 
allegation  was  met  by  a  plea  of  the  statute,  Lord  North,  after  argument, 
ordered  the  defendant  to  answer  so  much  of  the  bill  only  as  charged  that 
the  said  agreement  was  to  be  put  into  writing. (^)  It  seems  obvious, 
however,  that  such  a  procedure  affords  a  most  easy  means  of  evading  the 
intention  of  the  statute,  and  introducing  the  mischief  it  was  designed  to 
remedy :  and  accordingly,  the  law  is  now  clearly  established,  that  such 
an  allegation  is  no  saving  to  a  plea  of  the  statute,(/t)  and  that  after  a 
parol  agreement,  a  refusal  to  sign  a  written  one  is  no  fraud  of  which  the 
court  can  take  cognizance. (A 

(a)  Per  Sir  W.  Grant  in  Clarice  v.  Grant,  14  Yes.  525;  see  Colyer  v.  Claj,  1 
Beav.  188. 

(b)  I  Eq.  Gas.  Abr.  20,  pi.  5  ;  Walker  v.  Walker,  2  Atky.  98. 

(c)  1  Ves.  jun.  196.    See  also  Viscountess  Montacute  v.  Maxwell,  1  P.  Wms.61^. 

(d)  See  infra,  §  408. 

(e)  Warden  v.  Jones,  23  Beav.  487,  where  Sir  John  Rorailly  considered  these 
cases. 

(/)  Podmore  v.  Gunning,  T  Sim.  G44,  where  the  previous  cases  are  cited  and 
considered ;  Chester  v.  Urwick,  23  Beav.  407. 

(ff)  Leake  v.  Morris,  1  Dick.  14;  S.  C.  s.  n.  Leake  v.  Morrice,  2  Gas.  in  Ch.  135; 
Hollis  V.  Whiteing,  1  Vern.  151 ;  Deane  v.  Izard,  1  Vern.  159. 

(h)  Whitchurch  v.  Bevis,  2  Bro.  C.C.  565;  Wood  v.  Midgley,  5  De  G.M.  &  G.  41; 
S.  C.  2  Sm.  &  Gif.  115. 

(i)  S.  C. 


STATUTE    OF    FRAUDS,    ETC.  l^y, 

§  383.  (4:)  The  part  performance  of  a  coutraet  by  one  of  *tlie  r^ci-i-i 
parties  to  it  may,  as  has  already  been  stated,  take  the  contract  L  J 
in  a  court  of  equity  out  of  the  operation  of  the  Statute  of  Frauds,  and 
render  it,  although  merely  resting  in  parol,  capable  of  being  enforced 
by  way  of  specific  performance. 

§  384.  In  order  thus  to  withdraw  a  contract  from  the  operation  of  the 
statute,  several  circumstances  must  concur  :  1st,  the  acts  of  part  perform- 
ance must  be  such  as  are  not  only  referable  to  an  agreement  such  as  that 
alleged,  but  such  as  are  referable  to  no  other  title ;  2ndly,  they  must  be 
such  as  render  it  a  fraud  in  the  defendant  to  take  advantage  of  the  con- 
tract not  being  in  writing;  3rdly,  the  agreement  to  which  they  refer 
must  be  such  as  in  its  own  nature  is  enforceable  by  the  court ;  and  4thly, 
there  must  be  proper  evidence  of  the  parol  agreement,  which  is  let  in  by 
the  acts  of  part  performance. 

§  385.  (1)  It  seems  evident  that  all  that  can  be  gathered  from  acts  of 
part  performance,  is  the  existence  of  some  agreement  in  pursuance  of 
which  they  are  done  :  they  cannot,  unless  possibly  in  some  very  singular 
case,  be  themselves  sufficient  evidence  of  the  particular  agreement  alleged, 
because  they  cannot  in  themselves  show  all  the  terms  of  the  contract 
from  which  they  flow.  They  may  be  evidence  of  an  unknown  agi'eement, 
but  the  making  known  what  that  agreement  is  must  be  the  result  of  the 
evidence  which  the  acts  in  question  are  allowed  to  introduce. (A-)  It 
cannot  be  denied  that  there  is  some  want  of  exact  accuracy  in  this  re- 
spect in  the  statements  sometimes  made,  as  for  instance,  where  it  is  said 
that  the  acts  must  be  referable  to  the  alleged  agreement :  and  Lord  Eedes- 
dale  seems  to  have  held  that  to  admit  parol  evidence,  the  part  perform- 
ance must  be  such  as  to  show  the  very  same  agreement  as  the  plaintiflF 
alleged.  So  that  in  a  case  where  the  *plaintiff  stated  a  parol  |-^-._--. 
agreement  for  a  lease  for  three  lives,  and  payment  of  rent  in  part  L  -• 
performance,  the  defendant  admitted  an  agreement  but  for  one  life,  and 
not  for  three  :  his  lordship  said  that  the  Statute  of  Frauds  put  it  out  of 
the  power  of  the  court  to  execute  the  agreement  for  the  lease  for  three 
lives,  the  part  performance  being  perfectly  consistent  with  the  agreement 
alleged  by  the  defendant,  and  that  therefore  there  was  no  case  to  admit 
proof  of  a  further  agreement. (A 

§  38G.  The  true  principle,  however,  of  the  operation  of  acts  of  part 
performance  seems  only  to  require  that  the  acts  in  question  be  such  as 
must  be  referred  to  some  agreement,  and  may  be  referred  to  the  alleged 
one ;  that  they  prove  the  existence  of  some  agreement,  and  are  con- 
sistent with  the  agreement  alleged  :  and  this  is  very  well  illustrated 
by  a  recent  case(7H)  in  the  common  pleas  on  the  17th  section  of  the 
Statute  of  Frauds,  by  which  acceptance  is  treated  as  such  an  act  of  part 
performance  as  dispenses  with  the  necessity  of  writing.  It  was  there 
held,  that  bare  acceptance  of  the  goods  by  the  vendee  is  sufficient  to 
satisfy  the  section  of  the  statute,  so  that,  although  the  vendee  immedi- 

(k)  See  per  Lord  Alvanley  in  Foster  v.  Hall,  3  Yes.  712;  per  Wignam,  V.  C,  in 
Dale  V.  Hamilton,  5  Ha.  381. 

(I)  Lindsay  v.  Lynch,  2  Sch.  &  Lef.  1.  particularly  8.     See  infra,  g  423. 
(w)  Tomkiasoa  V.  Staight,  17  C.  B.  697, 


13-i       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ately  after  accepting  ttem  stated  that  he  did  so  on  terms  different  from 
those  on  which  the  vendor  delivered  them,  yet  the  acceptance  having 
established  the  fact  of  a  contract  of  sale,  parol  evidence  of  its  terms  was 
admissible.  It  was  there  strongly  urged  that  the  acceptance  must  be 
equivalent  to  a  memorandum  in  writing,  and  must  show  all  the  terms  of 
the  contract ;  but  the  doctrine  was  denied  by  the  learned  judges,  both 
during  the  argument  and  by  their  decision  of  the  case.  Williams,  J., 
in  the  course  of  his  judgment,  said,(?«)  <«  The  legislature  has  thought 
that  where  there  is  a  fact  so  consistent  with  the  existence  of  a  contract 
r*i7p-]  of  sale  as  the  actual  acceptance  of  part  of  the  *goods  sold,  the 
L  -I  necessity  of  a  written  evidence  of  the  contract  might  safely  be 
dispensed  with.  But  it  is  clear  that  it  was  not  meant  to  go  to  all  the 
terms  of  the  contract :  and  that  acceptance  is  no  evidence  of  the  price, 
but  only  establishes  the  broad  fact  of  the  relation  of  vendor  and  vendee. 
So  where  there  is  proof  of  part  performance,  the  jury  must  settle  all  the 
other  facts  that  go  to  make  up  the  contract." 

§  387.  To  make  the  acts  of  part  performance  effective  to  take  the 
agreement  out  of  the  Stafute  of  Frauds,  they  must  be  such  as  cannot  be 
referred  to  any  other  title  than  such  an  agreement  as  that  alleged,  nor 
have  been  done  with  any  other  view  or  design  than  to  perform  such  an 
agreement  :(o)  therefore,  where  a  tenant  in  possession  sued  for  the 
specific  performance  of  an  alleged  agreement  for  a  lease,  and  set  up  his 
possession  as  an  act  of  part  performance  of  the  agreement,  it  was  held 
not  to  be  such,  because  it  was  referable  to  his  character  as  tenant.  (|>)  So 
again,  where  a  tenant  from  year  to  year  continues  in  possession,  and  lays 
out  such  moneys  on  the  farm  as  are  usual  in  the  ordinary  course  of  hus- 
bandry, this  is  no  part  performance  of  an  agreement  for  a  lease. (g')  And 
again,  where  a  tenant  under  a  term  alleged  the  rebuilding  of  a  party-wall, 
which  was  in  a  ruinous  state  during  his  term,  as  part  performance  of  an 
agreement  by  his  landlord  to  grant  a  renewed  term  :  it  was  held  that 
the  act  was  equivocal,  as  it  might  have  been  done  by  him  in  respect  of 
his  title  under  the  old  as  well  as  under  the  alleged  new  term.(r) 

§  388.  (2)  The  principle  upon  which  courts  of  equity  exercise  their 
jurisdiction  in  decreeing  specific  performance  of  parol  agreement,  accom- 


[*177] 


panied  by  part  performance,  is  *the  fraud  and  injustice  which 


would  result  from  allowing  one  party  to  refuse  to  perform  his  part, 
after  performance  by  the  other  upon  the  faith  of  the  contract  :(s)  and  this 
principle  extends  not  only  to  contracts,  which  but  for  such  part  perform- 
ance would  be  void  by  reason  of  the  Statute  of  Frauds,  but  to  such  as 
being  entered  into  by  corporations  are  invalid  for  want  of  their  corporate 
seal.(<)  Such  being  the  principle  on  which  the  court  acts,  it  follows 
that,  where  the  acts  of  part  performance  by  the  one  are  not  such  as  to 

(?i)  p.  707.  (o)  Gunter  v.  Halsey,  Ambl.  586. 

(jo)  Wills  v.  Stradling,  3  Ves.  378  ;  per  Lord  Eldon  in  Ex  parte  Hooper,  19  Ves. 
479 ;  per  Sir  T.  Plumer  in  Morphett  v.  Jones,  1  S\v.  181  ;  5  Vin.  Abr.  323,  pi.  41. 

{q)  Brennan  v.  Bolton,  2  Dr.  &  W.  349.  (r)  Frame  v.  Dawson,  14  Ves.  386. 

(«)  Per  Sir  Wm.  Grant  in  Buckmaster  v.  Harrop,  7  Ves.  346;  per  Lord  Cotten- 
ham  in  Mundy  v.  Jolliffe,  5  My.  &  Cr.  177. 

(/)  London  and  Birmingham  Raihvay  Company  v.  Winter,  Cr.  &  Ph.  57;  Earl 
of  Lindsey  v.  Great  Northern  Railway  Company,  10  Ha.  664,  700. 


[*178] 


STATUTE    OF    FKAUDS,    ETC.  135 

render  refusal  to  perform  by  the  other  party  a  fraud  in  him,  however 
clearly  they  may  evidence  the  existence  of  an  agreement,  the  jurisdiction 
in  question  can  have  no  application  ;  and  this  may  be  the  case  either 
(1)  from  the  nature  of  the  acts  themselves,  which  we  shall  afterwards  con- 
sider, or  (2)  from  the  character  of  the  person  permitting  them. 

§  389.  On  this  latter  ground,  it  has  been  decided  that  where  a  plaintiff 
seeks  to  enforce  against  a  remainderman  a  parol  agreement  entered  into 
between  the  plaintiff  and  the  tenant  for  life,  acts  of  part  performance 
which  would  have  bound  the  tenant  for  life  will  not  bind  the  remainder- 
man, unless  it  can  be  shown  that  he  permitted  the  acts  of  the  plaintiff 
with  a  knowledge  of  the  agreement  entered  into  by  the  tenant  for  life.(w) 
For  to  constitute  fraud,  there  must  coincide  in  one  and  the  same  person 
knowledge  of  some  fact  and  conduct  inequitable  having  regard  to  such 
knowledge.  And  again,  on  the  same  principle,  where  the  acts  are  those 
of  persons  not  parties  to  the  contract,  they  will  not  be  binding,  so  that 
for  instance,  acts  done  by  arbitrators  ^towards  the  performance 
of  their  duty,  arc  not  part  performance  of  a  parol  agreement  for  a 
compromise  and  division  of  estates  by  arbitrators. (r) 

§  390.  From  the  nature  of  the  act,  it  follows,  that  though,  as  we  shall 
hereafter  see,  it  has  been  a  question  how  far  the  acceptance  of  part  of 
the  purchase-money  binds  the  vendor,  the  payment  of  this  on  the  part 
of  the  purchaser  can  in  no  wise  bind  him,  because  to  refuse  to  complete 
the  contract  after  paying  "  part  of  his  purchase-money,  would  be  no 
fraud  upon  the  seller,  but  his  own  loss."  The  question  was  raised  in  a 
case(ii')  where  the  heir-at-law  of  a  purchaser  sought  the  enforcement 
of  the  contract  against  the  personal  representative  of  his  ancestor,  and 
set  up  his  part  payment  as  a  part  performance  making  it  a  binding  con- 
tract :  but  on  the  ground  above  stated.  Sir  William  Grant  decreed 
against  the  claim  of  the  heir. 

§  391.  From  the  same  principle  too  it  seems  doubtful  whether  any 
acts  which  admit  of  alternative  remedies,  one  by  the  execution  of  the 
agreement  and  one  by  some  other  means,  as  under  the  Land  Clauses 
Consolidation  Act,  can  be  taken  as  part  performance,  because  there  is  no 
fraud  on  the  other  party  if  the  remedy  other  than  that  by  execution  of 
the  contract  be  pursued. (.r) 

§  392.  (3)  The  agreement  which  the  acts  of  part  performance  allow  to 
be  set  up  by  parol  evidence,  must  be  of  such  a  nature  that  the  court  would 
have  had  jurisdiction  in  respect  of  it  in  case  it  had  been  in  writing.  "Where 
the  court  has  jurisdiction  in  the  original  subject-matter,  viz.  the  contract, 
the  want  of  writing  will  not  deprive  the  court  of  it  where  there  is  part 
performance.  But  the  want  of  writing  cannot  itself  be  made  the  ground 
of  jurisdiction  ;  for  then  all  parol  contracts  which  the  Statute  of  Frauds 
^requires  to  be  in  writing  might  be  enforced  in  equity  when  p:i.i-Q-i 
there  was  part  performance,  which  is  not  the  case.    Accordingly,  L         -^ 

(m)  Blore  v.  Sutton,  3  Mer.  237;  Whitbread  v.  Brockhurst,  1  Bro.  C.  C.  404; 
per  Lord  Bedesdale  in  Shannon  v.  Bradstreet,  1  Sch.  &  Lcf.  72  ;  per  Lord  Cran- 
worth  in  Morgan  v.  Milman,  3  De  G.  JI.  k  G.  33. 

(v)  Cooth  V.  Jackson,  G  Ves.  12. 

(w)  Buckmaster  v.  Harrop,  7  Ves.  341  ;  S.  C.  13  Ves.  456. 

(a;)  See  per  Lord  Cranworth  in  Morgan  v.  Milman,  3  De  G.  JI.  &  G.  35. 


136      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

a  demurrer  to  a  bill  for  work  and  labour  done,  alleging  fraud  and  part 
performance,  was  allowed  by  Lord  Cottenbam,  reversing  a  decision  of 
the  vice-chancellor  of  England. (^)  And  where  the  possession  taken  is 
not  under  a  contract  but  adverse,  the  circumstance  that  there  is  no  legal 
remedy  does  not  suffice  to  give  the  court  jurisdiction. r;:;) 

§  393.  So,  where  the  engagement  is  of  an  honorary  and  not  of  a  legal 
character,  part  performance  gives  the  court  no  jurisdiction. (o)  Thus  in 
the  case  of  Lord  Walpole  v.  Lord  Orford,(i)  where  two  testators  on  the 
same  day  and  in  the  presence  of  the  same  witnesses  executed  mutual 
wills ;  one  of  the  testators  having  died, — it  was  argued  that  there  was 
part  performance  under  circumstances  which  could  only  be  referred  to 
an  agreement  between  the  testators  to  make  such  wills  :  but  Lord  Ross- 
lyn,  though  inferring  an  agreement  of  some  sort,  held  it  to  have  been 
merely  an  honourable  engagement,  and  one  which  the  court  therefore 
could  not  carry  out. 

§  39-1.  And  on  the  same  principle  there  can  be  no  part  performance 
of  an  incomplete  agreement.  For  acts  to  amount  to  part  performance, 
the  agreement  '<  must  be  obligatory,  and  what  is  done  must  be  done  under 
the  terms  of  the  agreement,  and  by  force  of  the  agreement.'Yc) 

§  395.  Having  thus  stated  the  general  character  of  the  acts  which  is 
requisite  to  make  them  part  performance  for  the  purpose  in  question,  I 
shall  briefly  state  the  result  of  these  principles  in  respect  of  particular 
acts. 

r*1Sfn  *§  ^^^'  ^^^  have  already  seen  that  possession  is  in  some  cases 
L  J  equivocal  in  respect  of  the  title  to  which  it  is  to  be  referred  :  at 
other  times  it  is  not;  therefore  the  possession  of  a  tenant  after  the  expi- 
ration of  a  lease,  which  was  referable  only  to  an  agreement  for  a  renewal, 
has  been  held  part  performance  of  such  an  agreement. ((/) 

§  397.  Still  more  clearly,  "the  acknowledged  possession  of  a  stranger 
in  the  land  of  another  is  not  explicable  except  on  the  supposition  of  an 
agreement,  and  has  therefore  constantly  been  received  as  evidence  of  an 
antecedent  contract." (e)  Even  where  the  possession  has  been  taken 
without  consent,  yet  if  the  owner  afterwards  allows  the  stranger  to  remain 
in  possession,  this  will,  it  seems,  operate  as  an  act  of  part  performance. (/) 

§  398.  And  so  in  a  recent  case,(<7)  where  there  was  a  parol  promise 
before  marriage  to  give  certain  property  to  the  married  pair  by  the  father 

(y)  Kirk  v.  Bromley  Union,  2  Phil.  040.  The  case  of  Pembroke  v.  Thorpe,  3 
Sw.  437,  n.,  may  appear  at  variance  with  this  view,  but  will  be  reconciled  by  con- 
sidering that  Lord  Hardwicke  held  the  court  to  have  an  original  jurisdiction  in 
respect  of  building  contracts.     See  ante,  ^  48. 

(z)  East  India  Company  v.  Nuthumbadoo  Veerasawmy  Moodelly,  *7  Moo.  P.  C. 
C.  482. 

(n)   Cf  ante,  ?  191.  (b)  3  Ves.  402. 

(c)  Per  Lord  13rougham  in  Thynne  v.  Lord  Glengall,  2  Ho.  Lords,  158. 

(d)  Dowell  V.  Uew,  1  Y.  &  C.  C.  C.  345. 

(e)  Per  Sir  T.  Plunier  in  Morphett  v.  Jones,  1  Sw.  181,  and  see  accordingly 
Butcher  v.  Stapely,  1  Vern.  363  ;  Pyke  v.  Williams,  2  Vern.  455  ;  Earl  of  Ayles- 
ford's  case,  2  Str.  783  ;  Stewart  v.  Denton,  1  Fonbl.  Eq.  187  ;  Savage  v.  Carroll, 
1  Ball  &  B.  265  ;  Kine  v.  Balfe,  2  Ball  &  B.  343. 

(/)  Gregory  v.  Mighcll,  18  Ves.  328;  Pain  v.  Coombs,  1  De  G.  &  J.  34,  46. 
iff)  Surcome  v.  Pinniger,  3  De  G.  M.  &  G.  571.     See  also  Floyd  v.  Buckland,  I 
Freem.  268. 


STATUTE    OF    FRAUDS,,    ETC.  137 

of  the  lady :  the  marriage  took  place,  and  was  followed  by  the  delivery 
up  of  possession  to  the  son-in-law,  expenditure  of  money  by  him,  and  the 
absence  of  all  disturbance  on  the  part  of  the  father-in-law :  these  acts 
were  held  to  be  in  part  performance  of  the  alleged  antenuptial  agree- 
ment. And  in  another  recent  case, (A)  where  a  parol  agreement  was 
come  to  for  a  lease,  and  the  terms  of  it  were  agreed  on  between  the  pro- 
posed lessor  and  lessee,  and  by  the  direction  of  the  lessor,  the  lessee  in- 
structed a  solicitor  who  acted  for  both  parties  to  reduce  the  terms  to 
writing;  and  the  solicitor  took  a  note  of  the  terms  thus  stated  to  him^ 
and  from  it  prepared  a  draft  agreement  embodying  *these  and  r:!;iQi-i 
other  terras,  which  he  submitted  to  the  lessor,  who  afterwards,  L  J 
without  objecting  to  it,  let  the  lessee  into  possession,  and  directed  the 
solicitor  to  prepare  a  lease  in  pursuance  of  the  draft  agreement.  A  draft 
lease  was  accordingly  prepared,  to  which  the  lessor  objected,  and  gave 
the  tenant  notice  to  quit.  The  court  held  that  there  was  part  perform- 
ance of  the  agreement,  and  enforced  the  same  accordingly. 

§  399.  The  same  principle  applies  in  eases  of  family  arrangements  in- 
volving the  giving  up,  partition,  or  exchange  of  land ;  so  that  though 
such  agreements  may  be  by  parol,  yet  if  they  be  followed  by  uninter- 
rupted exclusive  enjoyment  of  the  several  lands  in  pursuance  of  the 
arrangement,  the  court  will  specifically  enforce  them.(/) 

§  400.  In  considering  this  effect  of  possession  where  the  acquiescence 
has  been  of  very  long  duration,  the  court  will  regard  this  lapse  of  time 
as  a  cii'cumstance  against  allowing  the  statute  to  be  set  up.(Z;) 

§  401.  The  laying  out  of  money,  provided  it  be  such  as  would  only 
be  likely  to  take  place  in  pursuance  of  such  a  contract  as  that  alleged,  and 
it  be  with  the  privity  of  the  other  party,  is  an  act  of  part  performance. (Z) 
Therefore  where  a  proposed  lessee  entered  and  built,  the  acts  were  held 
to  be  suchj^m)  and  again,  the  alteration  of  a  garden  fence  and  the  plan- 
tation of  a  meadow  with  the  privity  of  the  other  party,  and  partly  at  his 
expense,  by  a  tenant  in  possession,  were  held  acts  of  part  performance, 
evidencing  a  contract  to  demise  the  meadow  for  a  term.(H) 

§  402.  The  expenditure  of  money  differs,  it  will  be  *observed,  p;^-,Q.^-, 
from  possession,  in  two  respects  :  the  one,  that  whilst  mere  pos-  L  ''"J 
session  is  referable  to  a  tenancy  at  will,  as  well  as  to  a  larger  estate,  the 
laying  out  of  any  considerable  sums  of  money  is  rationally  to  be  referred 
only  to  some  agreement  to  confer  a  substantial  interest  in  the  property  : 
the  other,  that  whilst  possession  cannot  be  supposed  to  be  continued  by 
a  stranger  without  the  knowledge  of  the  owner,  a  person  in  possession 
may  well  lay  out  money  without  the  owner's  cognizance  :  and  what  is 
therefore  necessarily  presumed  in  the  one  case  must  be  proved  in  the 
other. 

§  403.  It  seems  now  to  be  decided  that  the  payment  by  the  purchaser 

(A)  Pain  v.  Coombs,  1  De  G.  &  J.  34. 

(?)  Stockley  v.  Stockley,  1  V.  &  B.  23 ;  Neale  v.  Xeale,  1  Ke.  672. 

(k)  Blachford  v.  Kirkpatrick,  6  Bear.  232.       (l)  Wills  v.  Stradling,  3  Yes.  378. 

(w)  Savage  v.  Foster,  5  Vin.  Abr.  524,  pi.  43. 

(n)  Sutherland  v.  Briggs,  1  Ha.  26.  See  also  Stockley  v.  Stockley,  1  V.  <fc  B. 
23 ;  Toole  v.  .Medlicott,  1  Ball  &  B.  393 ;  Miindy  v.  Jolliffe,  5  .My.  &  Cr.  167  ;  Sur- 
come  V.  Pinniger,  3  De  G.  M.  &  G.  571. 


w 


138       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

to  the  vendor  of  the  whole  or  a  part,  -whether  substantial  or  unsubstan- 
tial, of  the  purchase-money,  is  not  an  act  of  part  performance  which  will 
take  the  parol  contract  out  of  the  statute.  The  grounds  of  this  decision 
seem  to  be,  first,  that  the  mention  of  part  payment  in  the  loth  section 
of  the  Statute  of  Frauds,  and  the  silence  in  that  respect  of  the  4th  sec- 
tion, must  be  taken  to  show  that  the  legislature  did  not  intend  that  part 
payment  should  be  binding  in  cases  of  the  sale  of  lands  :(o)  and  secondly, 
that  the  money  may  be  repaid,  and  that  both  parties  will  then  be  in  the 
situation  in  which  they  were  before  the  contract,  without  either  party 
having  gained  any  inequitable  advantage  over  the  other.(p)  This  is  a 
case  where  for  the  act  done  there  are  alternative  remedies,  one  by  the 
execution  of  the  contract,  and  the  other  by  repayment, — and  the  election 
to  put  the  other  party  to  the  latter  remedy  is  no  fraud.  It  has  been  in- 
geniously said  that  this  reasoning  overlooks  the  possibility  of  an  insol- 
vency intervening  and  preventing  the  repayment  of  the  purchase- 
money,(^)  but  the  courts  have  not  allowed  this  objection  to  prevail. 
p-j,-|Qo-]  §  404.  The  law  upon  this  subject  has  been  somewhat  *vacil- 
L  J  lating.  In  a  case(r)  before  Lord  Hardwicke,  he  held  part  pay- 
ment to  be  part  performance ;  but  this  as  a  general  proposition  was  early 
overruled.  The  question  then  arose  whether,  although  payment  of  a 
small  instalment  was  inoperative,  payment  of  the  whole  or  of  a  substan- 
tial part  of  the  price  would  not  be  an  act  of  part  performance;  and  Lord 
Rosslyn  maintained  the  affirmative  of  this  question  •.i&\  but  Lord  Redes- 
dale  denied  any  such  distinction, (<)  and  it  seems  now  to  be  overruled, 
upon  the  ground  that  it  is  impossible  satisfactorily  to  discriminate 
between  substantial  and  unsubstantial  part  payments. («) 

§  405.  In  one  case.  Sir  William  Grant  seems  to  have  held  that  the  fact 
that  money  spent  in  repairs  easily  admitted  of  compensation  without  exe- 
cution of  the  agreement,  was  a  reason  for  not  considering  it  as  part  per- 
formance ;(y)  and  where  the  acts  relied  on  are  proper  to  be  brought 
before  a  jury,  and  can  be  answered  in  damages,  they  will  not  be  consi- 
dered as  part  performance. (ir)  But  it  seems  clear  that  there  are  many 
acts  which  might  admit  of  compensation,  which  yet  amount  to  such  part 
performance,  as  will  enable  the  court  to  enforce  the  parol  agreement. 

§  406.  Payment  of  the  auction  duty  has  been  held  not  to  be  part  per- 
formance, it  being  by  the  revenue  laws  essential  to  the  contract,  and 
"that  without  which  there  would  have  been  no  contract  cannot  be  said 
to  be  in  part  performance  of  the  contract. 'Yj) 

r*l<?l"l       *§  407.  Payment  of  additional  rent  is  in  itself  equivocal.     It 
L         -J  has  been  said,  that  if  shown  or  admitted  to  have  been  on  the  foot 


(o)  Clinan  v.  Cooke,  1  Sch.  &  L.  22  :  Walt  v.  Evans,  4'Y.  &  C.  Ex.  579. 
\'p)  Clinan  v.  Cooke,  1  Sch.  &  L.  22.  [q)  13  Ves.  461,  n.  by  the  Reporter. 

(?■)  Lacon  v.  Mertins,  3  Atky.  4.     See  also  Child  v.  Comber,  3  Sw.  423,  n. 
(«)  Main  v.  Melbourn,  4  Ves.  720.     See  the  arguments  in  Wills  v.  Stradling,  3 
A''es.  378,  and  Simmons  v.  Cornelius,  1  Rep.  in  Ch.  138,  (a  case  before  the  statute.) 
{i)  In  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22. 

(«)  Watt  V.  Evans,  4  Y.  k  C.  Ex.  579.     See  Ex  parte  Hooper,  19  Ves.  479. 
(v)  Frame  v.  Dawson,  14  Ves.  38G.     See  also  O'Reilly  v.  Thompson,  2  Cox,  271. 
(w)  South  Wales  Railway  Company  v.  Wytlies,  1  K.  &  J.  18G. 
\x)  Per  Sir  W.  Grant  in  Buckmaster  v.  Harrop,  7  Ves.  346 ;  S.  C.  13  Ves.  456. 


STATUTE    OF    FRAUDS,    ETC.  139 

of  the  agreement,  it  is  a  circumstance  of  part  performance  ;{i/)  but  that 
would  be  to  infer  an  agreement  not  from  the  acts,  but  from  evidence 
with  regard  to  the  acts,  which  seems  clearly  inadmissible ;  and  it  has 
accordingly  been  since  held  that  such  a  payment  is  not  part  perform- 
ance.(2) 

§  408.  Marriage  is  not  alone  a  part  performance  of  an  agreement  in 
relation  to  it :  for  to  hold  this  would  be  to  overrule  the  Statute  of  Frauds, 
which  enacts  that  every  agreement  in  consideration  of  marriage  to  be 
binding  must  be  in  writing.(a)  And  accordingly,  where  there  was 
before  marriage  an  agreement  by  parol  for  the  settlement  of  part  of  the 
wife's  property,  and  that  the  husband  should  take  the  rest,  which  he 
did,  but  there  was  no  settlement  made,  and  the  wife  subsequently  filed 
her  bill,  stating  these  facts,  for  the  purpose  of  obtaining  a  declaration  of 
her  rights  in  certain  property  coming  to  her,  and  the  husband  by  his 
answer  admitted  the  statements  in  the  bill,  and  a  deed  was  then  pre- 
pared purporting  to  be  a  settlement  on  the  wife  in  pursuance  of  the 
agreement,  and  was  signed  but  not  acknowledged  by  the  wife  :  in  a  suit 
by  a  plaintiff  claiming  under  the  settlement  against  the  heir,  it  was  held 
that  there  was  no  part  performance  by  marriage,  nor  any  other  part  per- 
formance of  the  parol  agreement,  and  that  it  was  void  and  all  the  subse- 
quent proceedings  ineffectual. (i) 

§  409.  There  may,  of  course,  often  be  acts  connected  with  the  mar- 
riage which,  as  independently  of  it  they  would  be  acts  of  part  perform- 
ance, are  not  the  less  so  as  being  done  in  connection  with  it,  and  there- 
fore differ  from  cases  *where  the  marriage  is  the  sole  act  relied  |_jj.^„.-. 
on.  Thus,  in  a  case(c)  which  was  ultimately  decided  by  the  L  J 
house  of  lords,  it  was  held  that  the  execution  by  the  husband  of  a  settle- 
ment in  pursuance  of  a  parol  agreement  entered  into  by  him  with  the 
lady's  fother  previously  to  the  marriage  being  something  over  and  above 
the  marriage,  was  an  act  of  part  performance  of  the  parol  contract 
entered  into  previously  to  it.  In  a  recent  case(f/)  the  ma,ster  of  the  rolls 
has  held  that  the  execution  of  a  settlement  is  no  act  of  part  performance, 
where  the  previous  parol  agreement  is  between  the  intended  husband 
and  wife  only,  and  not  between  the  husband  and  some  third  person. 

§  410.  The  cases  in  which  the  court  relieves  on  the  ground  of  mar- 
riage in  fraud  of  a  parol  agreement  entered  into  previously  must,  of 
course,  be  distinguished  from  cases  in  which  the  marriage  itself  is  set  up 
as  part  performance  of  the  agreement. (c) 

§  411.  But  though  marriage  be  not,  cohabitation  may  be  a  sufficient 
act  of  part  performance.  In  a  separation  deed,  the  hu.sband  covenanted 
with  a  trustee  for  the  payment  of  an  annuity  to  his  wife:  shortly  before 
the  death  of  the  husband,  his  wife  returned  to  him  upon  the  faith  of  a 

(y)  Wills  V.  Stradlin^,  3  Ves.  378.         {z)  O'Herlihy  v.  Hedges,  1  Sch.  &  L.  123. 

(a)  Per  Lord  Hardwicke  in  Taylor  v.  Beech,  1  Ves.  Sen.  297 ;  per  Lord  Thur- 
low,  in  Dundass  v.  Dutcns,  1  Ves.  jiin.  1[»9.  As  to  this  case,  see  the  observations 
of  Sir  J.  Roniilly  in  Warden  v.  Jones,  23  Beav.  487. 


(b)  Lassence  v.  Tierney,  1  M'X.  &  G.  551. 

(c)  llaramcrsley  v.  De  Bicl,  12  CI.  &  Fin. 
.  M.  &  G.  571. 

[^d)  Warden  v.  Jones.  23  Beav.  487.  {e)  See  ante,  g  380. 


45,  G4,  n. ;  Surcome  v.  Pinniger,  3  De 
G.M.  &  G.  571. 


140       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

promise  made  by  the  husband  to  the  wife  and  her  trustee,  that  if  she 
would  do  so  he  would  continue  to  pay  the  annuity  and  would  charge  it 
upon  his  real  estate.  He  died  without  having  done  so,  and  it  was  held 
that  the  agreement  could  be  enforced  against  the  devisees  of  the  husband, 
on  the  ground  of  part  performance.^/) 

§  412.  As  acts  done  prior  to  a  contract  cannot  be  referred  to  it  as 
done  in  pursuance  of  it,  they  never  can,  it  seems,  be  treated  as  acts  of 
part  performance. (.^r) 

r*l8n       *§  ^^^*  ^^  ^^^°'  ^^^^  subsequent  to  the  agreement,  and 

L  J  even  in  pursuance  of  it,  if  not  strictly  in  performance  of  the 
agreement  as  between  the  parties  to  it,  but  preparatory  to  such  perform- 
ance, cannot  be  taken  as  part  performance.  It  is  evident  that  acts  of 
this  sort  may  be,  and  for  the  most  part  are,  the  mere  acts  of  the  party 
doing  them  :  the  other  party  is  not  necessarily  cognizant  of  them,  and 
consequently  he  is  not  so  bound  by  them  as  to  render  it  fraudulent  in 
him,  subsequently  to  refuse  to  carry  out  the  contract. 

§  414.  Therefore  giving  instructions  for  a  lease, (7t)  putting  a  deed 
into  a  solicitor's  hands  to  prepare  a  conveyance,(/)  giving  orders  for  a 
conveyance  to  be  drawn  and  going  several  times  to  view  the  estate,(&) 
the  execution  and  registration  of  the  deeds  by  the  vendor,(?)  and  the 
admeasurement  of  the  estate,(m)  have  all  been  decided  not  to  be  acts  of 
part  performance  binding  on  the  other  party  to  the  contract.  So  again, 
where  it  was  a  condition  of  the  agreement  that  the  plaintiff  should  obtain 
a  release  of  a  right  from  a  third  party,  which  the  plaintiff  did  obtain  by 
payment  of  a  valuable  consideration :  it  was  held  to  be  merely  a  prepara- 
tory act  on  the  part  of  the  plaintiff,  and  not  a  part  performance  of  the 
contract. (?A  And  the  appropriation  of  money  by  a  party,  though  it  may 
be  with  a  view  to  an  intended  purchase,  is  not  of  itself  any  part  perform- 
ance or  evidence  of  any  contract. (o) 

§  415.  To  the  same  principle  we  may  probably  refer  the  case  of 
Whaley  v.  Bagnal,(/))  in  the  house  of  lords  :  A.  agreed  by  parol  with  B. 
r*i8'-n  ^"^"^  ^^^^  purchase  of  lands;  B.  *delivered  a  rent-roll  to  A.,  which 
L  J  showed  by  its  heading  that  an  agreement  bad  been  entered  into 
between  them  for  the  sale  of  the  lands  comprised  in  it  at  twenty-one 
years'  purchase,  and  an  abstract  of  the  title  and  deeds  were  also  delivered 
to  A.  for  the  purpose  of  carrying  out  the  sale  :  B.  informed  his  creditors 
by  letter  that  he  had  agreed  to  sell  the  land  to  A.  :  he  took  A.  over  the 
estate,  introduced  him  as  landlord  to  the  tenants,  and  refused  to  renew 
leases  and  do  other  acts  of  management  as  owner,  in  these  cases  referring 
the  tenants  to  A.     B.  also  set  up  the  contract  against  an  elegit,  and  on 

(/)  Webster  v.  Webster,  27  L.  J.  Ch.  115,  and  S.  C.  before  the  L.  J.  J.,  4  De  G. 
M.  &  G.  437. 

{g)  Parker  v.  Smith,  1  Coll.  C.  C.  608,  623. 

(h)  Cole  V.  White,  cited  1  Bro.  C.  C.  409. 

(0  Redding  v.  Wilkes,  3  Bro.  C.  C.  400. 

{k)  Clerk  v.  Wright,  1  Atky.  12  ;  Cooke  v.  Tombs,  2  Anstr.  420. 

(I)  Hawkins  v.  Holmes,  1  P.  Wms.  770. 

(m)  Pembroke  V.Thorpe,  3  Sw.  437,  n.       («)  O'Reilly  v.  Thompson,  2  Cox,  271. 

(o)  East  India  Company  v.  Nuthumbadoo  Veerasawniy  Moodelly,  7  Moo.  P.  C. 
C.  482,  497. 

{p)   1  Bro.  P.  C.  345. 


STATLTE    OF    F  11  A  U  D  S,    ETC.  141 

the  strength  of  it  obtained  a  verdict  finding  liim  not  to  be  seised  of  the 
lands  in  question  :  but  notwithstanding  all  these  circumstances,  a  plea  of 
the  Statute  of  Frauds  was  allowed. 

§  416.  But  where  the  agreement  comprises  acts  between  A.  and  13. 
and  B.  and  C,  and  A.  may  be  supposed  to  have  an  interest,  or  to  have 
stipulated  in  respect  of  the  acts  between  13.  and  C,  part  performance  oi' 
this  part  of  the  contract  renders  it  binding  on  A.  This  seems  to  be  illu^;- 
trated  by  the  case  of  ParL'er  v.  Smith. (5)  There  a  lessor  entered  into  a 
parol  agreement  with  a  colliery  company,  holding  a  lease  from  him,  and 
consisting  of  four  partners,  of  whom  two  were  his  sons,  that  one  of  his 
sons  and  one  of  the  other  partners  should  retire  and  leave  the  benefit  of 
the  business  to  the  remaining  two,  and  tbat  thereupon  he  would  consider 
the  subject  of  rent,  which  it  was  found  was  put  too  high  in  the  original 
lease,  and  refer  the  subject  to  a  competent  person,  and  on  the  report  of 
that  person  being  made,  would,  if  the  report  should  seem  right,  adopt  it, 
and  grant  a  new  lease.  The  dissolution  of  partnership  so  agreed  on  took 
place,  and  the  two  continuing  partners  released  the  others:  these  acts 
being  referable  only  to  the  agreement,  were  held  to  take  the  case  out  of 
the  Statute  of  Frauds,  and  specific  performance  of  the  agreement  to 
*grant  the  lease  was  enforced  against  the  lessor's  assignees  in  [-^j-ioo-i 
bankruptcy.  L     ''''J 

§  417.  (4)  The  eS"eet  of  acts  of  part  performance  being  as  we  have 
seen,  to  show  that  there  is  an  agreement,  and  to  let  in  parol  evidence  of 
the  terms  of  that  agreement,  it  becomes  necessary  in  the  next  place  to 
inquire  on  what  evidence  the  court  will  act. 

§  418.  In  the  first  place,  it  is  to  be  observed,  that  if  there  be  any  such 
conflict  of  evidence,  as  leaves  any  uncertainty  in  the  mind  of  the  court 
as  to  what  the  terms  of  the  parol  contract  were,  its  interference  will  be 
refused. (r)  Therefore,  where  there  were  variations  between  the  evidence 
of  an  only  witness  and  a  memorandum  of  the  contract  in  a  pocket-book 
which  was  produced,  the  witness  mentioning  1000  guineas  exclusive  of 
timber  as  the  price,  whilst  the  pocket-book  made  no  mention  of  the 
timber,  the  court  dismissed  the  bill.(s)  And  where  an  agreement  was 
alleged  by  the  bill,  another  proved  by  the  plaintifi"'s  one  witness,  and  a 
third  admitted  by  the  two  defendants, — although  specific  performance 
was  decreed  according  to  the  agreement  set  up  by  the  answers,  Lord 
Rosslyn  considered  that  in  strictness,  the  bill  ought  to  have  been  dis- 
missed.(;")  The  inclination  of  Lord  Cottenham's  mind  seems  to  have 
been  to  struggle  with  apparently  conflicting  evidence,  rather  than  to  dis- 
miss the  bill,  where  there  had  been  part  performance. (?<]  And  in  a 
recent  case,(y)  it  was  observed  by  Sir  George  Turner  that  "  there  art- 
cases  in  which  the  court  will  go  to  a  great  extent  in  order  to  do  justice 
between  the  parties  where  possession  has  been  taken,  and  there  is  an 
uncertainty  about  the  terms  of  the  contract." 

(q)   I  Coll.  0.  C.  608. 

(/•)  Lindsay  v.  Lynch,  2  Scb.  &  L.  1.  (*)  Reynolds  v.  Waring,  You.  34<;. 

(/)  Mortimer  v.  Orchard,  2  Ves.  jun.  243. 
(u)  Mundy  v.  Jolliffe,  5  My.  &  C.  167. 

(v)  East  India  Company  v.  Nuthumbadoo  Yeerasawmy  Moodellv,  7  Moo.  P.  C. 
C.  482,  497.     See  ante,  §  204. 
November,  1858. — 10 


142      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

r*l  '^Ql  *§  ^^^'  ^^^^^'^  ^^®  variation  between  the  contract  alleged  and 
L  J  that  proved  consists  in  tlie  plaintiff's  admission  of  some  term 
against  liimself,  or  omission  of  some  term  in  his  favour  lii/A  or  where  the 
term  which  constitutes  the  variation  is  immaterial,  from  its  being  merely 
the  expression  of  what  would  be  implied  or  from  its  having  been  actually 
performed,  the  court  will  not  refuse  the  evidence  of  the  agreement.  So 
that  where  a  tenant  alleged  that  he  was  to  pay  taxes  and  do  necessary 
repairs,  and  the  contract  proved  did  not  contain  this  term  :(x^  and  again 
where  a  plaintiff  admitted  an  agreement  to  drain  the  lands  generally,  and 
he  only  proved  one  to  drain  whei*e  necessary,  and  he  also  stated  as  part 
of  the  agreement  that  he  was  to  lay  certain  arable  land  into  pasture,  which 
was  not  proved  by  the  evidence  :(j/')  in  each  of  these  cases,  the  variation 
was  considered  as  no  reason  for  rejecting  the  evidence  of  the  contract.(a) 

§  420.  The  existence  of  a  signed  but  incomplete  agreement  is  no 
obstacle  in  the  way  of  proving  the  additional  terms  by  parol  where  there 
is  part  performance  :(a)  for  the  whole  might  have  been  proved  by  parol, 
and  therefore  still  more  may  part.  The  doctrine  of  parol  variation  has  of 
course  no  application,  where  by  reason  of  acts  of  part  performance  parol 
evidence  is  admissible. 

§  421.  An  admission  of  the  agreement  in  the  answer  of  course  pre- 
cludes the  necessity  of  further  proof  :  and  the  fact  that  the  answer  prays 
the  benefit  of  the  Statute  of  Frauds  is  immaterial,  in  case  of  part  per- 
formance, for  that  excludes  the  operation  of  the  statute. (i) 

§  422.  Where  the  agreement  is  positively  denied  by  the  answer,  and 

is  proved  only  by  the  unsupported  evidence  of  one  witness,  that  will  not 

be  allowed  to  prevail  :  but  where  *the  one  witness  is  corroborated 

L         -J  in  his  statements  by  circumstances,  the  proof  may  prevail  over 

the  denial. (c) 

§  423.  Where  one  agreement  is  alleged  by  the  bill  and  another  set  up 
by  the  answer,  and  the  acts  of  part  performance  are  consistent  alike  with 
the  one  agreement  and  the  other.  Lord  Redesdale  seems  to  have  con- 
sidered that  there  was  no  case  to  admit  proof  of  a  further  agreement, 
and  that  the  acts  of  part  performance  must  be  such  as  to  show  them  to 
have  been  done  in  pursuance  of  the  very  same  agreement  as  that 
alleged. ((Z)  It  may  however  be  submitted,  that  this  view  of  the  case  is 
inconsistent  with  the  general  doctrine  of  the  operation  of  the  acts  of  part 
performance  :  that  they  open  the  whole  question  of  the  terms  of  the  agree- 
ment to  parol  evidence  :  and  that  as  a  written  agreement  where  there  are 
acts  of  part  performance  maybe  added  to  by  parol, (^')  so  an  agreement  set 
up  by  the  answer  may  be  modified  by  parol.  If  this  were  not  so,  the  plain- 
tiff would  be  at  the  mercy  of  the  defendant,  for  whereas  if  he  simply 
denied  the  agreement,  the  plaintiff  would  have  an  opportunity  of  proof 

(w)  Clifford  V.  Turrell,  1  Y.  &  C.  C.  C.  1.^8. 

(x)  Gregory  v.  Mighell,  18  Ves.  328.  (y)  Mundj  v.  Jolliffe,  5  My.  &  Or.  1G7. 

(z)  See  ante,  ^  lU.  (a)  Sutherland  v.  Briggs,  1  Ha.  26,  35. 

(b)  Cooth  V.  Jackson,  G  Ves.  12. 

(c)  East  India  Company  v.  Donald,  9  Ves.  275  ;  Morphett  v.  Jones,  1  Sw.  1V2  ; 
Toole  V.  Medlicott,  1  Ball  &  B.  393. 

(d)  Lindsay  v.  Lynch,  1  Sch.  &  Lef.  1.     See  ante,  ?  385. 

(e)  Sutherland  v.  Briggs,  1  Ila.  2G. 


MISREPRESENTATION.  143 

by  parol ;  when  he  set  up  some  other  agreement,  all  that  evidence  would 
be  excluded. (/) 

§  424  It  is  perhaps  not  entirely  decided  whether  the  court  can  in  any 
case  decree  an  inquiry  into  the  terms  of  a  contract,  when  it  has  not  been 
sufficiently  proved  to  enable  the  court  to  make  a  final  decree  upon  the 
evidence  before  it.  Lord  Manners(<7)  strongly  expressed  an  opinion  that 
the  court  has  no  such  jurisdiction,  a  view  which  seems  to  have  met  with 
the  approval  of  the  highest  authorities. (/<) 


*CHAPTER   XII.  [*191] 

OF    MISREPRESENTATION. 

§  425.  A  MISREPRESENTATION,  having  relation  to  the  contract,  made 
by  the  one  of  the  parties  to  the  other  of  them,  is  a  ground  for  refusing  the 
interference  of  the  court  in  specific  performance  at  the  instance  of  the 
former  party ;  and  may  in  certain  cases  be  a  ground  for  its  active  inter- 
ference in  setting  aside  the  contract  at  the  instance  of  the  latter.(a)  Re- 
presentations are  most  usually  by  word,  but  they  may  be  by  act,  as,  for 
instance,  by  the  performance  of  fraudulent  experiments,  on  the  faith  of 
which  a  contract  was  entered  into  for  a  license  under  a  patent. (6) 

§  42G.  Such  misrepresentations  are  resolvable  into  the  following  ele- 
ments, namely, — first,  the  statement  actually  untrue  ;  secondly,  the  fact 
that  the  party  making  the  statement  did  not  know  it  to  be  true  ;  thirdly, 
the  intent  in  the  party  making  the  statement  to  induce  the  other  party 
to  enter  into  the  contract ;  fourthly,  the  reliance  on  the  statement  by  the 
party  to  whom  it  is  made ;  fifthly,  the  statement  having  such  a  relation 
to  the  contract  as  that  the  statement  being  false  makes  the  contract  un- 
conscionable. 

§  427.  It  will  be  desirable  to  discuss  these  points  separately ;  and,  in 
doing  so,  to  consider  whether  the  *misrepresentation  in  question  rj^if,.;)-. 
is  alleged  by  way  of  defence  to  a  suit  for  specific  performance,  or  L  '  ~J 
defence  to  an  action  on  the  contract  at  law,  or  as  the  ground  for  an  action 
of  deceit  at  law,  or  for  the  rescission  of  a  contract  in  equity ;  for,  whilst 
the  same  ingredients  are  requisite  for  either  of  the  two  latter  proceed- 
ings,(c)  it  will  appear  that  somewhat  less  will  suffice  to  prevent  the  active 
interference  of  the  court  in  specific  performance.     The  object  of  the  pre- 

(/)  Cf.  also  the  case  of  Tomkinson  v.  Staight,  17  C.  B.  697,  stated  ante,  §  386. 

(g)  Savage  v.  Carroll,  2  Ball  &  B.  451,  and  see  Seton  Decrees,  566,  where  it  is 
laid  down  that  "  an  inquiry  should  not  be  directed  as  to  facts  which  are  the  founda- 
tion of  the  relief." 

(h)  Sug.  Vend.  12G;  Story,  Eq.  Jur.  §  764. 

(a)  Edwards  v.  M'Leay,  Coop.  308 ;  S.  C.  2  Sw.  287 ;  Gibson  v.  D'Este,  2  Y.  & 
C.  C.  C.  542,  reversed  in  D.  P.  s.  n.  Wilde  v.  Gibson,  1  Ho.  Lords,  605  ;  Sug.  Law 
of  Prop.  614. 

(b)  Lovell  v.  Hicks,  2  Y.  &  C.  Ex.  46. 

(c)  Attwood  V.  Small,  6  CL  &  Fin.  232,  395,  444;  Lovell  v.  Hicks,  2  Y.  k  0.  Ex. 
46,  51. 


144       FRY    ON    SPECIFIC    PERFOSMAXCE    OF    CONTRACTS. 

sent  chapter  being  to  consider  misrepresentations  in  relation  to  specific 
performance,  it  is  of  course  only  incidentally  and  partially  discussed  in 
tlie  other  relations  above  alluded  to. 

§  428.  (1)  The  first  point  calls  for  little  remark;  for  it  is  obvious  that 
unless  the  statement  be  actually  untrue,  there  can  be  no  misrepresenta- 
tion. 

§  429.  (2)  With  regard  to  actions  on  the  case  for  deceit  at  law,  and 
therefore  to  suits  in  equity  for  setting  aside  the  contract,  if  the  state- 
ment be  in  fact  false,  but  the  party  making  it  believes  it  to  be  true,  there 
will  be  no  fraud  sufficient  to  induce  the  interference  of  the  court,  (f?)  It 
is  not,  however,  necessary  to  show  that  the  party  knew  the  representation 
to  be  false ;  it  is  enough  if  it  was  false,  and  he  did  not  at  the  time  believe 
it  to  be  true,  and  that  he  made  it  for  a  fraudulent  purpose. (e) 

§  430.  The  same  principle  applies  where  misrepresentation  is  alleged 
as  a  defence  to  an  action  on  a  contract.  In  a  case(/)  on  a  covenant  in 
a  separation  deed,  to  which  fraud  was  pleaded,  Maule,  J.,  said,  "  I  con- 
ceive that  if  a  man,  having  no  knowledge  whatever  on  the  subject,  takes 
upon  himself  to  represent  a  certain  state  of  facts  to  exist,  he  does  so  at 
r*iQ^n  ^^^  peril :  and  if  it  be  done  either  with  a  view  *to  secure  some 
L  -I  benefit  to  himself,  or  to  deceive  a  third  person,  he  is  in  law  guilty 
of  a  fraud,  for  he  takes  upon  himself  to  warrant  his  own  belief  of  the 
truth  of  that  which  he  so  asserts." 

§  431.  But  where  there  is  no  fraudulent  intent  and  no  actual  know- 
ledge that  the  statement  is  untrue,  this  is  not  a  defence  to  an  action  on 
the  contract  at  law;  so  that  where  an  agent,  without  designing  to  deceive, 
made  a  representation  which  was  false,  but  which  he  did  not  know  to  be 
so,  whilst  the  principal  had  the  knowledge  of  the  actual  facts,  but  did 
not  make  the  representation,  it  was  held  that  there  was  no  fraud,  and 
that  the  misrepresentation  therefore  furnished  no  defence. (//) 

§  432.  In  equity,  however,  it  furnishes  a  good  defence  to  a  suit  for 
specific  performance,  that  the  plaintiff  made  a  representation  which  was 
not  true,  though  without  knowledge  of  its  untruth,  and  this  even  though 
the  mistake  be  innocent;  for  a  man,  before  making  a  representation, 
ouo'ht  not  only  not  to  know  it  to  be  untrue,  he  ought  to  know  that  it  is 
true.(7i)  So  in  a  case  where  a  trustee  was  charged  by  the  court  in  respect 
of  a  misrepresentation  made  to  a  purchaser,  and  the  trustee  alleged  that 
he  did  not  at  the  time  recollect  the  fact  thus  misrepresented.  Sir  William 
Grant  said,  "the  plaintiff"  cannot  dive  into  the  secret  recesses  of  his  (the 
trustee's)  heart,  so  as  to  know  whether  he  did  or  did  not  recollect  the 
fact,  and  it  is  no  excuse  to  say  that  he  did  not  recollect  it."(i)     In  like 

(d)  Early  v.  Garrett,  9  B.  &  C.  928  ;  Freeman  v.  Baker,  5  B.  &  Ad.  191 ;  Moens 
V.  Heyworth,  10  M.  &  W.  147.  (c)  Taylor  v.  Ashton,  11  M.  &  W.  401. 

(/)  Evans  v.  Edmonds,  13  C.  B.  Ill,  18G. 

[g)  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  discussed  and  explained  in  the  National 
Exchange  Company  v.  Drew,  2  iM'Q.  103.  See  also  Fuller  v.  Wilson,  3  Q.  B.  58, 
and  in  Cam.  Scac.  as  Wilson  v.  Fuller,  3  Q.  B.  68,  which  was  an  action  for  deceit, 
ultimately  decided  on  the  ground  that  the  cause  of  the  injury  was  the  plaintiff's 
own  misapprehension. 

{h)  Ainslie  v.  Medlycott,  9  Ves.  13,  21;  Wall  v.  Stubbs,  1  Mad.  80. 

(i)  In  Burrowes  v.  Lock,  10  Ves.  476;  accordingly  Price  v.  Macaulay,  2  De  G. 
M.  &  G.  339. 


MISREPRESEXTATION.  145 

manner,  it  may  be  added  that  in  the  cases  of  agents  rendering  p^^„  ,^ 
^themselves  personally  liable,  it  is  the  same  whether  they  rcpre-  L  J 
sent  what  thoy  know  to  be  false,  or  what  they  do  not  know  to  be  true.(/^) 

§  433.  Though  a  person  making  a  representation  may  at  the  time 
believe  it  to  be  true  and  have  made  it  innocently,  yet  if,  after  discover- 
ing that  it  was  untrue,  he  suffers  the  other  party  to  continue  in  error, 
and  to  act  on  the  belief  that  no  mistake  has  been  made, — this  from  the 
time  of  the  discovery  becomes,  in  the  contemplation  of  a  court  of  equity, 
a  fraudulent  misrepresentation,  even  though  not  so  originally.^/) 

§  434.  (3)  The  misrepresentation  must  have  been  made  in  relation  to 
the  contract  in  question,  and  with  a  view  to  induce  the  other  party  to 
enter  into  it;  it  must  be  dolus  dans  locum  contractui.  Hence,  unless 
under  very  special  circumstances,  it  must  have  been  made  at  the  time  of 
the  treaty, (?u)  and  not  have  relation  to  some  collateral  matter,  or  other 
relation  or  dealing  between  the  parties. (/<) 

§  435.  This  point  was  much  discussed  in  a  recent  case(o)  in  the  house 
of  lords.  There,  a  tottering  joint  stock  company  had  put  out  flourish- 
ing annual  reports  of  its  condition,  and  shortly  after  the  last  of  these  re- 
ports, and  with  a  view  to  prevent  its  shares  falling  in  the  market  and  to 
counteract  certain  unfavourable  rumors,  the  company,  through  their 
manager,  urged  the  defenders  to  purchase  additional  shares  in  the  con- 
cern, and  assured  them  that  *the  company  would  advance  the  j-^^^,-. 
necessary  funds,  and  that  the  stock  should  be  held  until  it  could  L  J 
be  sold  at  a  profit,  without  the  defenders  being  called  on  to  pay  any 
money  :  the  shares  became  valueless,  and  the  company  sued  for  the 
money  advanced,  to  which  the  defenders  pleaded  the  fraud  of  the  com- 
pany :  to  this  plea  it  was,  amongst  other  things,  objected  that  the  loan 
was  one  independent  transaction,  and  the  purchase  another,  and  that  the 
alleged  misrepresentation  in  the  purchase  did  not  vitiate  the  loan.  But 
it  was  held  by  their  lordships  that  the  defence  was  good.  Lord  Cranworth 
putting  it  on  the  ground  that  the  transaction  did  not  constitute  a  loan 
in  the  ordinary  sense  of  the  word,  but  a  special  contract  by  the  company 
to  purchase  for  the  defenders,  to  be  repaid  only  in  a  particular  manner: 
and  Lord  St.  Leonards  holding  that  the  purchase  and  the  loan  were  one 
transaction,  though  consisting  of  two  parts, — that  if  there  had  been  no 
loan  there  would  have  been  no  purchase,  and  if  there  had  been  no  pur- 
chase thei'c  would  have  been  no  loan. 

§  436.  But  it  is  not  essential  to  make  a  misrepresentation  operate  as 
such  that  it  should  have  been  made  from  a  corrupt  motive  of  gain  to  the 
person  making  it,  or  a  wicked  motive  of  injury  to  the  person  to  whom  it 
is  made  :  therefore  where  a  person,  not  authorized  to  do  so,  accepted  a 

{k)  Per  Alderson,  B.,  in  Smout  v  Ubery,  10  M.  &  W.  10. 

[1)  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  660,  particularly  per  Lord  Cranworth,  p. 
709. 

(;«)  Per  Sir  J.  Leach  in  Harris  v.  Kemble,  1  Sim.  122.  Asto  the  question  whether 
a  representation  by  an  Insurance  Company  in  a  published  prospectus  can  be  pre- 
sumed, in  the  absence  of  specific  evidence,  to  have  been  the  basis  of  an  insurance 
eflfected  with  them,  see  Wheelton  v.  Ilardisty,  26  L.  J.  Q.  B.  265. 

(?()  Harris  v.  Kemble,  1  Sim.  Ill,  128,  overruled,  but  as  to  the  application  and 
not  as  to  the  principle,  .'>  BH.  N.  S.  730.     See  also  Dawes  v.  King,  1  Stark.  75. 

(o)  The  National  Exchange  Company  v.  Drew,  1  .M'Q.  103. 


146       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

bill  as  by  the  procuration  of  the  drawee,  doing  so  in  the  absence  of  the 
drawee,  and  in  the  belief  that  the  drawee  would  have  accepted  it,  and 
without  any  fraud  in  fact,  he  was  held  liable  as  for  a  fraud  in  law,  inas- 
much as  he  had  made  a  misrepresentation,  knowing  it  to  be  untrue,  in  a 
way  calculated  to  make  another  act  on  the  faith  of  it  to  his  damage,  and 
the  damage  had  actually  occurred. (p) 

§  ^^'^-  (-i)  Another  essential  circumstance  to  misrepresentation 
L  -I  *as  a  defence  to  specific  performance,  is  that  it  was  in  reliance 
upon  the  statements  in  question  that  the  party  to  whom  they  were  made 
entered  into  the  contract.  In  Attwood  v.  Small, (j)  which  was  a  case 
for  the  rescission  of  the  contract  (and  for  this  point  the  plaintiff's  case 
for  rescission  and  the  defendant's  case  against  specific  performance  seem 
alike,)  Lord  Brougham,  after  referring  to  the  earlier  cases,  said,  "  Now, 
my  lords,  what  inference  do  I  draw  from  these  cases  ?  It  is  this,  that 
general  fraudulent  conduct  signifies  nothing;  that  general  dishonesty  of 
purpose  signifies  nothing;  that  attempts  to  overreach  go  for  nothing,  un- 
less all  this  dishonesty  of  purpose,  all  this  fraud,  all  this  intention  and 
design  can  be  connected  with  the  particular  transaction,  and  not  only 
connected  with  the  particular  transaction,  but  must  be  made  to  be  the 
very  ground  upon  which  this  transaction  took  place,  and  must  have 
given  rise  to  this  contract." 

§  488.  In  considering  whether  the  defendant  relied  on  the  misrepre- 
sentation of  the  plaintiff,  the  court  will  discriminate  between  such  repre- 
sentations as  are  in  conscience  a  part  of  the  bargain,  whether  incorporated 
into  the  legal  contract  or  not,  and  mere  vague  commendations,  as  the 
holding  out  of  mere  hopes  or  expectations  which  ought  to  put  the  other 
party  upon  further  inquiry;  and  in  judging  of  this,  it  is  important  to 
consider  whether  the  thing  undertaken  or  stated  lies  in  the  power  or 
knowledge  of  the  party  making  the  representation,  or  whether  it  lies 
bej-ond  his  power  or  knowledge.  Thus,  for  instance,  with  regard  to 
mines,  a  distinction  will  be  drawn  between  a  specific  account  of  what 
was  to  be  seen  in  the  mine,  and  a  general  description  of  its  prospects 
and  capabilities,  which  from  the  very  nature  of  the  property  must  be 
problematical  and  doubtful. (r) 

^■'■^  439.  On  this  principle  where  an  advowson  was  sold  by  aue- 
L  J  tion,  and  the  particulars  stated  that  a  voidance  of  the  preferment 
was  likely  to  occur  soon,  but  made  no  mention  of  the  present  incumbent, 
and  the  auctioneer  at  the  sale  stated  in  explanation  that  the  living  would 
be  void  on  the  death  of  a  person  aged  eighty-two  ;  and  in  fact  the  then  in- 
cumbent was  only  thirty-two  years  of  age ;  Sir  William  Grant  held  the 
representation  made  by  the  particulars  so  vague  and  indefinite  that  its 
only  effect  ought  to  have  been  to  put  the  defendant  upon  making  inqui- 
ries, and  accordingly  granted  specific  performance. (.s)     And  so  again,  the 

(p)  Polhill  V.  Walter,  3  B.  &  Ad.  114;  Gibson  v.  D'Este,  2  Y.  &  C.  C.  C.  542  ; 
but  see  S.  C.  in  D.  P.  s.  n. ;  Wilde  v.  Gibson,  1  IIo.  Lords,  605  ;  Sudg.  Law  of 
Prop.  C14. 

(q)  6  CI.  &  Fin.  447.  Consider  Wheelton  v.  Hardisty,  2G  L.  J.  Q.  B.  65 ;  ante, 
g  434,  n. 

(r)  Jennings  v.  Broughton,  IV  Beav.  234. 

(s)  Trower  v.  Newcome,  3  Mer.  704. 


MISREPRESENTATION.  147 

representation  that  land  was  uncommonly  rich  water-meadow,  whereas, 
in  fact,  it  was  very  imperfectly  watered,  was  held  not  to  be  a  bar  to  per- 
formance.(/) 

§  440.  But  generally  speaking,  in  statements  made  by  the  vendor  as 
to  property,  he  is  bound  to  make  them  free  from  all  ambiguity,  and  the 
purchaser  is  not  bound  to  take  upon  himself  the  peril  of  ascertaining  the 
true  meaning  of  the  statement. (i() 

§  441.  Besides  the  vagueness  of  the  representation,  there  are  other 
grounds  upon  which  the  court  will  conclude  that  it  was  not  relied  upon 
by  the  party  to  whom  it  was  made  :  these  were  discussed  by  Lord  Lang- 
dale  in  the  case  of  Clapham  v.  Shilito.(«j)  Ilis  lordship  there  said  :(w) 
•'  Cases  have  frequently  occurred  in  which  upon  entering  into  contracts 
misrepresentations  made  by  one  party  have  not  been,  in  any  degree,  relied 
on  by  the  other  party.  If  the  party  to  whom  the  representations  were 
made  himself  resorted  to  the  proper  means  of  verification,  before  he  en- 
tered into  the  contract,  it  may  appear  that  he  relied  *upon  the  |-^-.„„-. 
result  of  his  own  investigation  and  inquiry,  and  not  upon  the  rep-  L  J 
resentations  made  to  him  by  the  other  party  :  or  if  the  means  of  investi- 
gation and  verification  be  at  hand,  and  the  attention  of  the  party  receiv- 
ing the  representations  be  drawn  to  them,  the  circumstances  of  the  case 
may  be  such  as  to  make  it  incumbent  on  a  court  of  justice  to  impute  to 
him  a  knowledge  of  the  result,  which,  upon  due  inquiry,  he  ought  to 
have  obtained,  and  thus  the  notion  of  reliance  on  the  representations 
made  to  him  may  be  excluded.  Again,  when  we  are  endeavouring  tu 
ascertain  what  reliance  was  placed  on  representations,  we  must  consider 
them  with  reference  to  the  subject-matter  and  the  relative  knowledge  of 
the  parties.  If  the  subject  is  capable  of  being  accurately  known,  and 
one  party  is,  or  is  supposed  to  be  possessed  of  accurate  knowledge,  and 
the  other  is  entirely  ignorant,  and  a  contract  is  entered  into  after  repre- 
sentations made  by  the  party  who  knows,  or  is  supposed  to  know,  with- 
out any  means  of  verification  being  resorted  to  by  the  other,  it  may  well 
enough  be  presumed  that  the  ignorant  man  relied  on  the  statements  made 
to  him  by  him  who  was  supposed  to  be  better  informed  :  but  if  the  sub- 
ject is  in  its  nature  uncertain, — if  all  that  is  known  about  it  is  matter 
of  inference  from  something  else,  and  if  the  parties  making  and  receiv- 
ing representations  on  the  subject  have  equal  knowledge  and  means  of 
acquiring  knowledge,  and  equal  skill,  it  is  not  easy  to  px-esume  that  rep- 
resentations made  by  one  would  have  much  or  any  influence  upon  the 
other." 

§  442.  The  fact  that  resort  has  been  had  to  other  means  of  knowledge 
is,  we  have  seen,  one  ground  on  which  courts  will  hold  that  the  misrep- 
resentation was  not  relied  on.  «  If,"  said  Lord  Holt,  alluding  to  the 
circumstances  of  the  case  before  him, (a:)  "  the  vendor  gives  in  his  par- 

(t)  Scott  V.  Hanson,  1  Sim.  13  ;  S.  C.  1  R.  &  My.  128.  See  also  on  this  princi- 
ple, Fenton  v.  Browne,  14  Ves.  144;  Brealey  v.  Collins,  You.  317;  Brooke  v. 
Roundthwaite,  5  Ila.  298. 

(«)  Martin  v.  Cotter,  3  Jon.  &  L.  496,  507 ;  Wall  v.  Stubbs,  1  Mad.  80. 

(v)  7  Beav.  146.  (w)  pp.  149.  150. 

(x)  Lysney  v.  Selby,  2  Lord  Ravd.  1118.  1120. 


148      FEY    ON    SPECIFIC    PERFORxMANCE    OF    CONTRACTS. 

r*lQQn  ^^^^^^''  of  the  rents,  and  the  vendee  says  lie  will  trust  him  and 
L  J  *inquire  no  farther,  but  rely  upon  his  particular;  then,  if  the 
particular  be  false,  an  action  will  lie ;  but  if  the  vendee  will  go  and  in- 
quire further  what  the  rents  are,  there  it  seems  unreasonable  he  should 
have  any  action,  though  the  particular  be  false,  because  he  did  not  rely 
upon  the  particular."  It  was  on  this  ground  that  the  house  of  lords 
ultimately  decided  the  celebrated  case  of  Small  v.  Attwood.(^)  The  Bri- 
tish Iron  Company  had  sent  a  deputation  of  their  directors  down  to  Mr. 
Attwood's  works  for  the  express  purpose  of  verifying  his  representations, 
and  they  expressed  their  satisfaction  with  the  proofs  produced  :  by  this 
line  of  conduct  they  precluded  themselves  from  being  able  to  rely  on  any 
previous  misrepresentations,  for  if  a  purchaser  chooses  to  judge  for  him- 
self, and  does  not  avail  himself  of  all  the  knowledge  and  means  of  know- 
ledge open  to  him,  he  will  not  afterwards  be  allowed  to  say  that  he  was 
deceived  by  the  representations  of  the  vendor.  The  case  was  a  suit  for 
rescission,  and  not  a  defence  to  a  specific  performance ;  but  for  the  pre- 
sent point  these  seem  to  be  alike. 

§  443.  The  principle  is  further  illustrated  by  the  recent  case  of  Jen- 
nings V.  Broughton,^^')  where  the  plaintiff,  having  bought  shares  in  a 
mine,  afterwards  sought  to  set  aside  the  sale  on  the  ground  of  misrepre- 
sentation as  to  the  state  of  the  mine ;  but  he  having  visited  the  mine 
himself,  and  the  alleged  misstatements  being  such  as  he  was  competent 
to  detect,  the  court  held  that  his  purchase  of  shares  had  not  been  made 
in  reliance  on  the  representations,  and  the  bill  was  dismissed  both  by  the 
master  of  the  rolls  and  the  court  of  appeal. 

§  444.  And  where  a  purchaser  complained  of  a  representation  that  the 
woods  sold  had  yielded  £250  per  annum  on  an  average  of  fifteen  years, 
on  the  ground  that  though  they  might  in  fact  have  done  so,  yet  that  they 
r*9nfn  '^'^^1*^  ^'^^  *have  done  so  in  a  fair  course  of  husbandry,  his  ob- 
L  "^  J  jection  was  held  to  be  displaced  by  proof  that  he  had  been  put  in 
possession  of  a  paper  from  which  he  might  have  ascertained  that  the 
woods  had  been  unequally  cut.(o) 

§  445.  The  allegation  of  misrepresentation  may  also  be  effectually  met 
by  proof  that  the  party  alleging  it  was  from  the  beginning  cognizant  of 
all  the  matters  complained  of,  or  after  full  information  concerning  them 
continued  to  act  on  the  footing  of  the  contract,  or  to  deal  with  the  pro- 
perty comprised  in  it  as  if  held  under  the  contract :  as  for  instance,  where 
a  lessee  of  a  mine  after  knowledge  of  alleged  misrepresentation,  continued 
to  work  it.(i) 

§  446.  On  this  principle  it  is,  that  where  a  misrepresentation  has  been 
made  by  the  vendor  with  regard  to  some  patent  defect  in  the  thing  sold, 
and  it  is  proved  that  the  purchaser  had  seen  the  thing  sold,  so  that  this 
defect  must  have  been  known  to  him,  he  will  not  be  able  to  avail  him- 
self of  the  defect  as  a  bar  to  specific  performance.  This  was  decided  by 
Sir  William  Grant  in  the  case  of  Dyer  v.  IIargrave,(c)  where  a  farm  was 

(y)  6  CI.  &  Fin.  232.         (z)  5  De  G.  M.  &  G.  12G,  affirming  S.  C.  17  Beav.  234. 

(rt)  Lowndes  v.  Lane,  2  Cox,  303. 

(b)  Vigors  V.  Pike,  8  CI.  &  Fin.  562  ;  per  Lord  Cottenhani,  p.  G50. 

(c)  10  Ves.  605. 


MISREPRESENTATION.  149 

described  as  all  lying  within  a  ring-fence,  whereas  is  did  not  in  fact  so 
lie  ;  but  it  was  clearly  proved  that  the  defendant  had  lived  in  the  neigh- 
bourhood all  his  life,  had  seen  the  farm  before  purchasing  it,  and  must 
have  known  whether  it  did  lie  in  a  ring  fence  or  not;  and  on  these  facts 
the  master  of  the  rolls  decided  that  the  defendant  was  clearly  excluded 
from  insisting  upon  the  misrepresentation  as  a  defence.  This  principle 
will  of  course  only  apply  where  the  thing  in  respect  of  which  the  repre- 
sentation is  made  is  one  perfectly  visible  to  everybody. (r/) 

§  447.  This  case  was  supported  by  Sir  William  Urant  by  the  analogy 
uf  warranties  at  law,  in  which,  however  *general,  defects  appa-  |-^.^„...- 
rent  at  the  time  of  the  bargain  are  not  included,  because  they  L  "  J 
can  form  no  subject  of  deceit  or  fraud  :  so  that,  for  example,  a  person 
who  buys  a  horse  knowing  it  to  be  blind  in  both  eyes,  cannot  sue  for 
this  defect  on  a  general  warranty  of  soundness. (c) 

§  448.  But  for  the  vendor  thus  to  countervail  the  effects  of  his  own 
misrepresentation,  the  evidence  of  knowledge  in  the  other  party  must  be 
conclusive;  he  "  must  show  very  clearly  that  the  purchaser  knew  that  to 
be  untrue  which  was  represented  to  him  as  true ;  for  no  man  can  be 
heard  to  say  that  he  is  to  be  assumed  not  to  have  spoken  the  truth. "(/) 

§  449.  Such  being  the  proof  required,  it  is  very  certain  that  the  mere 
circumstance  of  other  means  of  knowledge  being  open  to  the  purchaser 
will  not  have  this  effect,  even  though,  independently  of  any  statement, 
the  party  relying  on  the  representation  would  in  law  have  been  taken  to 
have  had  notice  of  the  contrary.  The  doctrine  of  notice  has  no  applica- 
tion where  there  has  been  a  representation  as  to  the  fact  of  which  notice 
would  be  implied  r^y)  the  proof  must  go  further,  and  clearly  show  the 
purchaser  to  have  had  communicated  to  his  mind  information  of  the  real 
state  of  facts. (-/i) 

§  450.  Therefore  where  a  distinct  representation  has  been  made,  it 
will  not  be  countervailed  by  any  general  statement  or  any  circumstances 
from  which  an  inference  inconsistent  with  the  representation  might  be 
drawn,  even  though  in  the  absence  of  such  representation  they  might  be 
.sufficient  to  put  the  other  party  on  inquiry. (/) 

*  451.  Nor  will  it  prevent  the  effect  of  a  misrepresentation  |.^,^„^-. 
that  the  party  making  it  recommended  the  other  to  consult  his  L  "  "'J 
friends  and  professional  advisers,  for  <<  no  man  can  complain  that  another 
has  too  implicitly  relied  on  the  truth  of  what  he  has  himself  stated. "(^) 

§  452.  Thus  where  a  misrepresentation  is  made  by  a  vendor  in  respect 
of  a  lease,  of  the  covenants  in  which  the  purchaser  would  by  law  be  im- 
plied to  have  notice,  the  vendor  will  be  equally  bound  by  his  statement 
as  if  no  such  implication  arose.  (A 

(d)  Grant  v.  Munt,  Coop.  173  ;  post,  §  563  et  seq. 

(e)  Bayly  v.  Merrel,  Cro.  Jac.  38G  ;  Margetson  v.  Wright,  7  Bing.  G03. 

(/)  Per  "Knight  Bruce,  L.  J.,  in  Price  v.  Macaulay,  2  De  G.  JI.  &  G.  346 ;  Wil- 
son V.  Short,  G  Ha.  366,  378 ;  Dyre  v.  Hargrave,  10  Ves.  505. 

(ff)  Drysdale  v.  Mace,  2  Sm.  &  Gif.  225,  230. 

(h)  Price  v.  Macaulay,  2  De  G.  M.  &  G.  339.  See  also  Gibson  v.  D'Este,  2  Y. 
&  C.  C.  C.  542,  572.  (?)  Wilson  v.  Short,  6  Hare,  366,  377. 

{k)  Reynell  v.  Sprye,  1  De  G.  M.  &  G.  6G0,  710;  Dobell  v.  Stevens,  3  B.  &  C.  623. 

(l)  Van  V.  Corpe,  3  My.  &  K.  269 :  Flight  v.  Barton,  id.  282  :  Pope  v.  Garland, 
4  Y.  &  C.  Ex.  394,  401. 


150      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  453.  Oa  the  same  principle  it  was  decided  that  where  a  vendor  re- 
presented the  house  to  be  substantially  and  well  built,  and  it  proved  to 
be  the  contrary,  the  vendor  was  not  entitled  to  specific  performance, 
though  the  defendant  might  of  course  have  inquired  into  its  actual  state. (»») 

§  454.  In  Harris  v.  .Kemble,(«)  there  was  a  contract  consequent  upon 
certain  misrepresentations  as  to  the  profits  of  a  theatre  :  Sir  J.  Leach  was 
of  opinion  that  these  representations  being  manifestly  founded  on  accounts 
which  were  equally  open  toboth  parties  (they  being  joint  owners  of  the 
theatre,)  and  being  justified  by  the  accounts,  did  not  avoid  the  contract; 
but  his  decision  was  overruled  by  Lord  Chancellor  Lyndhurst,  and  after- 
words by  the  house  of  lords,  on  the  ground  that  the  representation  was 
made  with  a  view  to  the  agreement,  and  that  the  accounts  were  so  kept 
as  to  render  it  diflScult  without  employing  an  accountant  to  draw  any 
certain  conclusion  from  them. 

§455.  The  circumstance  that  the  vendor  sold  "with  all  faults," 
though  it  may  serve  to  put  the  purchaser  on  his  guard,  will  not  enable 
the  vendor  to  say  that  the  purchaser  did  not  rely  on  his  representation, 
r*''03T  ^^  pi"event  the  purchaser  *from  avoiding  the  sale,  if  that  repre- 
L  "^     -I  sentation  were  false.(o) 

§  456.  The  principle  that,  in  order  to  render  a  misrepresentation  opera- 
tive, there  must  be  reliance  on  it  by  the  party  to  whom  it  was  made, 
applies  to  the  case  of  the  assignment  of  a  contract  originally  affected  by 
such  a  circumstance;  for  it  seems  that  if  A.  contract  with  B.,  and  in  so 
doing  there  are  circumstances  of  fraud  on  the  part  of  A.  which  would 
prevent  his  enforcing  the  contract  against  B.,  but  B.  assigns  the  contract 
to  C,  on  whom  no  fraud  is  practised  and  who  is  not  afi'ected  by  the  ori- 
ginal misrepresentation,  in  such  circumstances 'the  contract  might  be 
enforced  against  C.,(j?)  for  he  placed  no  reliance  on  the  misrepresenta- 
tion made  to  B. 

§  457.  (5)  It  is,  as  already  stated,  necessary  to  constitute  a  misrepre- 
sentation which  will  prevent  a  specific  performance,  that  the  statement 
in  question  shall  be  so  material  to  the  contract  built  on  it  that,  if  the 
statement  be  false,  the  contract  becomes  one  which  it  would  be  uncon- 
scionable for  the  party  having  made  the  statement  to  enforce.  In  other 
words,  the  misrepresentation  must  be  shown  to  have  operated  to  the  pre- 
judice of  the  defendant. (5^)  Therefore,  where  A.  induced  a  purchaser 
to  think  that  he  was  contracting  with  B.  through  his  (A.'s)  agency, 
whereas  he  was,  in  fact,  contracting  with  A.  himself,  but  there  was 
nothing  to  induce  the  belief  that  he  would  not  have  contracted  on  the 
same  terms  with  A.,  or  that  he  had  sustained  any  loss  or  inconvenience 
from  acting  under  the  mistake,  the  court  enforced  performance  of  the 
contract.^?-)  But  it  is  sufficient  if  the  misrepresentation  operate  to  the 
prejudice  of  the  defendant  to  a  very  small  e5tent.(s) 

(w)  Cox  V.  Middleton,  2  Drew,  209. 
(n)   1  Sim.  Ill,  particularly  120  ;  S.  C.  5  1511.  N.  S.  730. 
(0)  Sclineider  v.  Ileatli,  3  Cam.  506.     Sec  also  post,  ^  571. 
Ip)  Smith  v.  Clarke,  12  Ves.  477,484.      (y)  SeePolhill'v.  Walter,  3  B.  &  Ad.  114. 
(r)  Fellowcs  v.  Lord  Gwydyr,  1  Sim.  63  ;  S.  C.  1  R.  &  My.  83  ;  cf.  Flint  v.  Woodin, 
a  Ha.  G18. 

(«)  Cadman  v.  Horner,  18  Vcscy,  10.     The  distinction  of  the  casuists  between 


FRAUD.  151 

*§  458.  Where  fraud  or  misrepresentation,  to  whatever  extent  r^^Q^^-, 
it  may  go,  has  been  established,  it  operates  as  a  personal  bar  to  L  "^  J 
the  relief,(^)  and  the  party  guilty  of  it  cannot  enforce  the  contract,  even 
if  he  waive  the  portion  of  it  affected  by  the  misrepresentation.  In  a 
casefw)  where  there  was  a  misrepresentation  which  the  master  of  the  rolls 
considered  not  to  have  been  wilful,  but  to  have  arisen  from  misunder- 
standing as  to  the  surrender  of  a  lease  on  part  of  the  property  which  was 
to  be  exchanged,  and  the  plaintiff  offered  to  take  the  land  subject  to  the 
lease,  and  thus,  as  he  contended,  to  abide  by  the  agreement,  exonerated 
from  what  was  affected  by  the  misrepresentation ;  so  that  the  question 
distinctly  arose  whether  the  misrepresentation  avoided  the  contract  in 
toto  or  only  quoad  Itoc, — Sir  Thomas  Plumer,^^;)  said,  <<  there  is  no 
authority  anywhere,  no  case  where  the  court  has,  when  misrepresentation 
was  the  ground  of  a  contract,  decreed  the  specific  performance  of  it ;  and 
nothing  would  be  more  dangerous  than  to  entertain  such  a  jurisdiction. 
The  principle  upon  which  performance  of  an  agreement  is  compelled 
requires  that  it  must  be  clear  of  the  imputation  of  any  deception.  The 
conduct  of  the  person  seeking  it  must  be  free  from  all  blame  :  misrepre- 
sentation, even  as  to  a  small  part  only,  prevents  him  from  applying  here 
for  relief.  The  reason  of  this  is  obvious;  if  it  be  so  obtained,  the  con- 
tract is  void  both  at  law  and  in  equity.  Where  an  agreement  has  been 
obtained  by  fraud,  is  the  effect  to  alter  it  partially,  to  cut  *it  j-^.-,^.-, 
down,  or  modify  it  only?  No,  it  vitiates  it  in  toto ;  and  the  party  L  "^  J 
who  has  been  drawn  in  is  totally  absolved  from  obligation.  If  so,  what 
equity  has  the  other  party,  who  by  his  misconduct  has  lost  one  contract, 
to  call  on  the  court  for  his  benefit  to  make  a  new  one  ?  If  the  defendant 
were  willing  to  consent  to  it  and  to  enter  into  a  new  agreement,  it  would 
be  a  different  case;  but  if  he  refuses,  if  he  insists  that  he  is  absolved 
from  it,  what  equity  can  there  be  in  favour  of  the  other?" 


*CH  AFTER    XIII.  [*20G] 

OF   FRAUD. 

§  459.  Fraud  is  of  course  a  larger  word  than  misrepresentation,  and 
includes  in  it  not  only  misrepresentation  on  the  part  of  the  vendor,  which 
we  have  already  considered,  but  also  the  unconscionable  and  deceptive 
dealing  of  either  party  to  any  contract. 

§  460.   Fraud  comes  before  the  courts  in  several  relations.     It  comes 

error  antecedcns  and  concomitans  was  the  same  as  that  referred  to  in  this  sec- 
tion. Error  "  dividltur  in  anlecedentem  qui  dat  causani  contractui,  ita  ut  eo  absente, 
contractus  non  fierct,  et  in  concomilanlem,  sen  incidentem,  quo  ctiam  absente  adhuc 
contractus  iuiretur.  ...  Si  error  circa  solam  qualitatem  accideutalcm  con- 
tingerit,  qua;  simul  cum  substantia  rei  non  ingreditur  objectum  substantiale  con- 
tractus, hie  validus  omnino  persistet."     Mariani  E.xameu,  |  279. 

(t)  Harris  v.  Kemble,  5  Bli.  N.  S.  730,  751. 

(«)  Viscount  Clermont  v.  Tasburgh,  1  J.  &  W.  112.  (v)  pp.  119,  120. 


152      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

before  courts  of  law  as  a  defence  to  an  action  on  the  contract,  or  as  the 
ground  for  an  action  for  deceit :  it  comes  before  courts  of  equity  as  a 
ground  for  setting  aside  an  executed  contract,  as  a  defence  to  a  suit  for 
specific  performance,  or,  lastly  as  forming  an  exception  to  the  Statute  of 
Frauds,  in  which  relation  it  is  considered  in  the  chapter  on  that  statute. 

§  461.  Under  the  chapter  on  misrepresentation  we  have  seen  that  the 
suggestion  of  what  is  false  is  a  ground  for  refusing  specific  performance, 
and  also  in  certain  cases  for  rescinding  contracts :  the  same  results  flow 
from  the  suppression  of  a  fact  which  is  material,  and  which  it  is  the  duty 
of  one  party  to  the  contract  to  communicate  to  the  other.(a) 
r^'^n-n  *§  ^^^'  Therefore,  where  part  of  an  estate  sold  was  an  cn- 
L  "^  J  croachment  on  a  common,  in  respect  of  which  the  lord's  rights 
were  not  conclusively  barred  by  time,  and  this  fact  was  known  to  the 
vendor,  and  by  him  concealed  from  the  purchaser,  the  court  set  aside  an 
executed  conveyance. (i) 

§  463.  The  authority  of  this  case  was  followed  and  relied  on  by  Knight 
Bruce,  V.  C,  in  the  celebrated  case  of  Gibson  v.  D'Este,(c)  in  which  he 
decided  that  the  knowledge  in  the  vendor  or  her  agent  of  a  right  of  way 
over  the  property  sold  of  which  the  purchaser  was  not  aware,  and  which 
was  not  stated  to  him  by  the  vendor  or  her  agent,  was  a  ground  for  the 
rescission  of  the  contract.  This  decision  was,  however,  overruled  by  the 
house  of  lords,((7)  on  the  principle  that,  in  order  to  set  aside  a  purchase 
perfected  by  conveyance  and  payment  of  the  purchase-money,  there  must 
be  proof  of  the  direct  personal  knowledge  and  concealment  by  the  prin- 
cipal, and  not  merely  by  an  agent,  and  that  such  proof  was  wanting  in 
the  case.  This  decision  has  by  no  means  given  universal  satisfaction, (e) 
but  whether  correct  or  not,  it  leaves  intact  the  doctrine  established  in 
Edwards  v.  M'Leay. 

§  464.  Though  the  vendor  is  thus  bound  to  make  known  to  the  pur- 
chaser any  circumstance  lessening  the  value  of  the  estate,  the  purchaser 
is  not  under  a  corresponding  obligation  to  communicate  any  circumstance 
which  may  enhance  its  value.  So  that,  for  instance,  a  man  knowing  of 
„  the  existence  of  a  mine  under  an  estate,  may  validly  deal  *with 
L  "  -I  the  owner  who  is  ignorant  of  this  fact,  without  any  communica- 
tion of  it.(/)  And  so  where  a  first  mortgagee,  with  power  of  sale,  hav- 
ing entci-ed  into  an  arrangement  not  amounting  to  a  binding  contract  for 
the  advantageous  sale  of  part  of  the  mortgaged  property,  afterwards 

(a)  The  question  as  to  what  facts  which  might  influence  the  mind  of  one  party 
it  is  the  duty  of  the  other,  if  Icnowing  of  them,  to  communicate,  is  one  of  great 
difficulty.  It  is  disctissed  by  Cicero  in  a  well-known  passage,  (De  Offic.  lib.  iii.  c. 
12  et  seq. :)  culpable  concealment  being  in  his  opinion  "cum,  quod  tu  scias,  id 
ignorare  emolumenti  tui  causa  veils  eos,  quorum  intersit  id  scire,"  c.  13.  The 
limitation  put  by  Grotius  on  this  principle  would  probably  be  adopted  by  our  law, 
"  non  ergo  gencralitcr  sequendum  illud  ejusdem  Ciceronis,  celare  esse,  cum  tu, 
quod  scias,  id  ignorare,  emolumenti  tui  causa,  velis  eos  quorum  intersit  scire:  sed 
tum  demum  id  locum  liabet,  cum  de  lis  agitur  qufc  rem  subjectam  per  se  contin- 
gunt."  De  Jur.  Belli  ac  Pads,  lib.  ii.  c.  12,  s.  9.  See  also  Pothier,  Tr.  du  Con- 
trat  de  Vente.  part  ii.  ch.  2. 

(b)  Edwards  v.  M'Leay,  Coop.  308 ;  2  Sw.  28V  ;  Sug.  Law  of  Prop.  649. 

(c)  2  Y.  &  C.  G.  C.  542. 

(d)  S.  N.     Wilde  v.  Gibson,  1  Ho.  Lords,  605.  (e)  Sug.  Law  of  Prop.  614. 
(/)  Fox  V.  Mackreth,  2  I3ro.  C.  C.  400,  420. 


FRAUD.  153 

bought  up  at  a  reduced  price  the  interest  of  the  second  morttragee  with- 
out informing  him  of  the  arrangements  for  sale,  a  bill  to  set  aside  the  sale 
by  the  second  mortgagee,  on  the  ground  of  the  suppression  of  informa- 
tion by  the  purchaser,  was  dismissed  by  the  master  of  tlie  rolls,  and  sub- 
sequently by  the  lord  chancellor.f//)  Nor  is  the  purchaser  liable  to  an 
action  for  deceit  for  misrepresenting  the  seller's  chance  of  sale,  or  the 
probability  of  his  getting  a  better  price  than  that  offered. (A)  But  in 
equity  the  purchaser  must  not  make  any  false  representation  as  to 
the  estate,  or  go  any  further  than  silence  ;  "  A  very  little,"  said  Lord 
Eldon,  "  is  sufficient  to  affect  the  application  of  that  principle.  If  a 
word,  if  a  single  word  be  dropped  which  tends  to  mislead  the  vendor, 
that  principle  will  not  be  allowed  to  operate."  Accordingly,  in  the 
case(?')  before  his  lordship,  the  purchaser  having  made  such  suggestions 
of  what  was  not  true,  the  contract  was  set  aside  :  and  in  a  recent  case,(^-) 
where  a  solicitor  bought  of  a  person  in  difficulties  who  was  selling  with- 
out professional  advice,  and  untruly  represented  the  nature  and  title  of 
the  property  as  such  that  no  one  but  a  professional  man  would  purchase 
it,  specific  performance  was  refused. 

§  465.  We  have  already  seen  in  other  cases  that  suppression  of  a  fact 
may  be  a  circumstance  influencing  the  discretion  of  the  court,  though  not 
amounting  to  fraud. (?) 

§  466.  The  employment  of  a  puffer  at  auctions  is  in  ^'some  cir-  ^^^^f.. 
cumstances  regarded  as  fraud,  which  will  prevent  the  enforcement  L  "  J 
of  the  contract  made  at  the  auction.  The  cases  seem  to  fall  under  three 
heads,  which  it  will  be  desirable  to  discriminate. 

§  467.  (1)  Where  the  sale  is  announced  to  be  without  reserve,  this 
excludes  any  interference  on  the  part  of  the  vendor  which  can  under  any 
possible  circumstance  affect  the  right  of  the  highest  bidder  to  have  the 
property  knocked  down  to  him,  and  that  without  reference  to  the  amount 
to  which  the  highest  bidding  shall  go.(m)  Therefore,  the  employment 
by  the  vendor  in  such  a  sale  of  one  or  more  persons  to  keep  up  the  price 
on  his  behalf  amounts  to  fraud  in  the  contemplation  of  all  courts,(«)  and 
is  a  bar  to  specific  performance. (<y)  Where  the  vendors,  who  were 
assignees  of  an  insolvent,  put  up  his  life-interest  in  certain  property  for 
sale  by  auction  without  reserve,  having  previously  entered  into  an 
arrangement  with  a  person  whose  wife  was  interested  in  remainder,  that 
he  should  bid  £35,000  and  be  the  purchaser,  unless  a  higher  sum  should 
be  bid,  and  this  fact  was  concealed,  it  was  held  to  taint  the  sale  to  the 
defendant  at  the  auction,  though  he  purchased  for  £50,000. (^*) 

§  468.  (2j  Where  there  is  no  declaration  that  the  sale  is  without  re- 
serve, and  the  vendor  employs  one  person  to  prevent  the  property  going 

(<7)  Dolman  v.  Nokes,  22  Beav.  402.  (A)  Vernon  v.  Keys,  12  East,  G32. 

(?)  Turner  v.  Harvey,  Jac.  169,  178;  Davies  v.  Cooper,  5  My.  &  Cr.  270. 

(A-)  Davis  V.  Abraham,  Week.  Rep.  1856-1857,  4G5,  (Wood,  V.  C.) 

(/)  See  ante,  g  242. 

(?«)  Per  Lord  Cottenham  in  Robinson  v.  Wall,  2  Phil.  375. 

(n)  Thornett  v.  Haines,"  15  M.  &  W.  307.  where  the  earlier  cases  are  cited. 

(o)  Meadows  v.  Tanner,  5  Mad.  34. 

(p)  Robinson  v.  Wall,  10  Beav.  61;   S.  C.  2  Phil.  372. 


154      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

at  an  undervalue :  this  is  not  fraud  in  the  contemplation  of  a  court  of 
equity,(5)  but  it  is  in  that  of  a  court  of  law.(r) 

§  4G9.  Inasmuch  as  a  contract,  if  originally  void  at  law,  ought  not  to 
be  enforced  by  equity,  the  defendant  in  a  suit  for  specific  performance 
r*9im  ™^y  ^^^^^  himself  of  *the  defence  furnished  by  this  fraud  at 
L  "     -I  law,  formerly  by  means  of  a  trial  of  the  question  at  law.(s) 

§  470.  (3)  Even  in  the  absence  of  any  declaration  that  the  sale  is 
without  reserve,  the  employment  of  two  or  more  persons  as  puffers  is  in 
all  courts  considered  as  fraudulent,  inasmuch  as  only  one  person  can  be 
necessary  to  protect  the  property,  and  the  employment  of  more  can  only 
be  to  enhance  the  price. (?) 

§  471.  Although  companies  and  other  corporations  are  from  their 
nature  incapable  of  fraud,  their  contracts  are  aifected  by  the  fraud  or 
misrepresentation  of  their  agents,  the  benefit  of  which  is  to  be  enjoyed 
by  the  company,  in  the  same  way  as  if  the  fraud  or  misrepresentation 
could  be  made  by  the  abstraction  called  the  corporation,  and  had,  in 
fact,  been  so  made  by  it.(?<) 

§  472.  The  questions  how  far  the  fraud  of  the  agent  operates  at  law,(i;) 
or  in  a  suit  for  rescission, (u')  are  of  considerable  difficulty.  But  it  seems 
to  be  clear  on  general  principles,  that  it  furnishes  a  sufficient  defence  to 
a  suit  for  specific  performance  in  equity. 

§  473.  It  is  competent  for  the  party  imposed  upon  to  waive  the  fraud, 
and  acts  of  adoption  may  amount  to  a  waiver  :  but  to  do  so,  they  must 
be  done  with  a  full  and  entire  knowledge  of  all  the  facts. (a;)  Thus 
where  a  defendant,  having  full  information  of  the  facts  of  the  case,  gave 
*a  notice  to  rescind  in  case  the  plaintiff  did  not  perform  his  part 
L'""  J  by  a  certain  time,  and  by  this  notice  the  defendant  offered  to 
perform  his  part  of  the  agreement,  he  was  held  to  have  waived  any  mis- 
representations which  might  have  been  made.(y) 

(q)  Smith  v.  Clarke,  12  Ves.  477  ;  Woodward  v.  Miller,  2  Coll.  C.  C.  279 ;  Flint 
V.  Woodin,  9  Ha.  618 ;  Bramley  v.  Alt,  3  Ves.  620. 

(r)  Per  Lord  Wensleydale  ia  Thornett  v.  Haines,  15  M.  &  W.  372  ;  Crowder  v. 
Austin,  3  Bing.  368. 

(s)  Woodward  v.  Miller,  2  Coll.  C.  C.  279. 

(t)  Per  Lord  Wensleydale  in  Thornett  v.  Haines,  15  M.  &  W.  372.  See  also  Rex 
V.  Marsh,  3  Y.  &  J.  331  ;  Bramley  v.  Alt,  3  Ves.  620. 

(u)  Ranger  v.  Great  Western  Railway  Company,  5  Ho.  Lords,  72;  National  Ex- 
change Company  v.  Drew,  2  M'Q.  103. 

(v)  Cornfoot  v.  Fowke,  6  M.  &  W.  358  ;  National  Exchange  Company  v.  Drew, 
2  M'Q.  103;  Fuller  v.  Wilson,  3  Q.  B.  58,  68;  Wilde  v.  Gibson,  1  Ho.  Lords,  605, 
615  ;  Hern  v.  Nichols,  1  Salk.  289  ;  per  Lord  Lyndhurst  in  Attwood  v.  Small,  6 
CI.  &  Fin.  413. 

(tv)  See  ^  463. 

(z)  Per  Lord  Lyndhurst  in  Attwood  v.  Small,  6  CI.  &  Fin.  432.  As  to  rescind- 
ing on  the  ground  of  fraud,  see  post,  §  704. 

\y)  Macbrydc  v.  Weekes,  22  Bear.  533. 


iMI  STAKE.  155 

♦CHAPTER   XIV.  [*212] 

OF   MISTAKE. 

§  474.  There  being  two  parties  to  every  contract,  it  follows  that 
mistake  may  be,  1st,  the  mistake  of  the  defendant  alone ;  or  2ndly,  the 
common  mistake  of  both  plaintiff  and  defendant  :  or  3rdly,  the  mistake 
of  the  plaintiff  alone.  The  first  and  second  species  will  require  discus- 
sion, as  grounds  of  defence  to  a  suit  for  specific  performance  ;  the  second 
and  third  will  both  raise  the  question  how  far  the  plaintifi'  may  enforce 
performance  with  a  correction  of  the  error.  It  will  be  necessary  to  con- 
sider mistake  not  only  as  a  defence  to  a  specific  performance,  but  also  to 
some  extent  as  giving  a  plaintiff  a  right  to  a  rescission  or  rectification  of 
the  contract. 

§  475.  The  principle  upon  which  equity  proceeds  in  those  cases 
where  mistake  is  the  ground  of  defence,  is  this  : — that  there  must  be  an 
agreement  binding  at  law,  but  that  this  is  not  enough, — that  to  entitle 
the  plaintiff  to  more  than  his  legal  remedy,  the  contract  must  be  more 
than  merely  legal.  It  must  not  be  hard  or  unconscionable ;  it  must  be 
free  from  fraud,  from  surprise,  and  from  mistake  :  for  where  there  is 
mistake,  there  is  not  that  consent  which  is  essential  to  a  contract  in 
equity  :  non  videntur  qui  errant  consentire.(a\ 

§  476.  Again,  the  Statute  of  Frauds  has  not  affected  the  situation  of 
a  defendant  against  whom  specific  ^performance  is  sought,(i)      _^    -, 
and  it  therefore  leaves  it  open  to  him  to  produce  any  evidence  L  "  '^\ 
for  his  purpose,  which  is  not  to  establish  an  agreement,  but  to  rebut  an 
equity  which  the  plaintiff  insists  has  arisen  out  of  an  agreement. 

§  477.  The  cases  of  mistake  have,  it  is  true,  seemed  to  present  rather 
peculiar  difl&culties  to  the  admission  of  parol  evidence,  because  it  has 
been  argued  that  to  do  so  is  to  overrule  the  Statute  of  Frauds  and  to 
contract  the  writing  by  parol.  Its  admission  is  however  the  settled  doc- 
trine of  the  court,  and  that  not  merely  for  purposes  of  defence  to  a  specific 
performance,  but,  as  we  shall  hereafter  see,  for  the  purpose  of  correcting 
the  mistake.  The  question  of  its  admission  by  way  of  defence  was  much 
debated  in  the  case  of  the  Marquis  Townshend  v.  Stangroom,(c)  where 
Lord  Eldon  said,  "  It  cannot  be  said,  that  because  the  legal  import  of  a 
written  agreement  cannot  be  varied  by  parol  evidence,  intended  to  give 
it  another  sense,  therefore  in  equity,  when  once  the  court  is  in  possession 
of  the  legal  sense,  there  is  nothing  more  to  inquire  into.  Fraud  is  a  dis- 
tinct case,  and  perhaps  more  examinable  at  law :  but  all  the  doctrine  of 
the  court  as  to  cases  of  unconscionable  agreements,  hard  agreements, 
agreements  entered  into  by  mistake  or  surprise,  which  therefore  the 
court  will  not  execute,  must  be  struck  out,  if  it  is  true,  that  because 
parol  evidence  should  not  be  admitted  at  law,  therefore  it  shall  not  be 
admitted  in  equity  upon  the  question,  whether,  admitting  the  agreement 

(a)  Dig.  Lib.  50,  tit.  17,  t.  116. 

{b)  Per  Sir  Wm.  Grant  in  Clarke  v.  Grant.  14  Ves.  519. 

(c)  6  Ves.  328. 


156      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

to  be  such  as  at  law  it  is  said  to  be,  the  party  shall  have  a  specific  execu- 
tion, or  be  left  to  that  court,  in  which,  it  is  admitted,  parol  evidence 
cannot  be  introduced. "((^)  "No  person,"  said  Lord  Redesdale,(e)  "shall 
be  charged  with  the  execution  of  an  agreement,  who  has  not,  either  by 
r*-?in  bimself  *or  his  agent,  signed  a  written  agreement ;  but  the  statute 
L  "^  -I  does  not  say  that  if  a  written  agreement  is  signed,  the  same  ex- 
ception shall  not  hold  to  it  that  did  before  the  statute." 

§  478.  It  follows  from  what  has  been  stated,  that  where  the  defendant 
has  been  led  into  any  mistake  or  error,  the  plaintiiT  cannot  enforce  the 
contract.  Therefore,  where  in  a  sale  by  auction,  the  plaintiff  had  in- 
duced the  defendant,  who  was  the  vendor,  to  think  that  he  should  not 
bid,  and  so  put  him  off  his  guard,  and  the  estate  was,  by  a  misapprehen- 
sion on  the  part  of  the  pei'son  employed  to  make  the  reserved  bidding, 
allowed  to  be  knocked  down  to  the  plaintiff,  the  court  on  the  ground  of 
mistake,  though  there  was  no  fraud,  declined  to  enforce  the  sale.(/)  In 
another  case((7)  the  estate  was  sold  in  lots :  the  particular  stated  that  the 
timber  on  lots  four  and  five  was  to  be  taken  at  a  valuation  :  in  addition 
to  this,  one  of  the  conditions  of  sale  specified  that  the  purchaser  was  to 
take  the  timber  (speaking  generally  without  reference  to  any  particular 
lot)  at  a  valuation :  Sir  "William  Grant  said  that  the  express  declaration 
as  to  lots  four  and  five  was  so  likely  to  mislead  a  purchaser  as  to  the 
meaning  of  the  conditions,  that  supposing  that  the  right  construction  of 
the  condition  was  that  it  applied  to  all  the  lots,  it  would  be  inequitable  to 
enforce  specific  performance  of  the  contract. 

§  479.  In  the  preceding  cases  it  will  be  observed  that  the  plaintiff 
contributed  to  the  mistake  of  the  defendant.  But  in  cases  of  mistake 
purely  due  to  the  defendant  himself  or  his  agent,  the  court  will  likewise 
refuse  specific  performance:  indeed,  it  will  furnish  active  assistance  on 
the  ground  of  the  mistake  of  the  party  himself  as  well  as  of  another,  as 
is  strongly  shown  by  a  case  in  which  a  professional  man  was  relieved  at 
rt-oiP,-]  ^^'^^  ^^^^  ^''•^^  ^^  error  in  a  *deed  of  his  own  drawing.(/i)  The 
L  "^  -J  cases  too  on  intoxication  furnish  an  analogy  to  this  doctrine  :  for 
that  circumstance  is  a  ground  of  defence,  though  it  may  have  been  in 
nowise  brought  about  by  the  plaintiff.^/) 

§  480.  On  this  principle,  where  a  person  who  was  employed  by  the 
vendor  of  some  property  to  bid  for  him,  came  into  the  auction-room,  and 
after  hearing  the  description  of  a  lot  which  was  perfectly  different  from 
that  for  which  he  was  engaged  to  bid,  kept  bidding  in  a  hasty  and  incon- 
siderate manner  for,  and  ultimately  purchased,  this  lot,  which  by  his 
own  gross  mistake  he  thought  to  be  the  lot  for  which  he  was  to  bid,  the 
court  refused  specifically  to  carry  out  the  sale.(/c) 

§  481.  So  where  a  vendor  had  revoked  the  authority  of  the  auctioneer 
as  to  part  of  the  property,  and  the  auctioneer  inadvertently  sold  the  whole, 
the  court  refused  specific  performance,  though  the  purchaser  was  justified 

(d)  p.  333.     Accordingly  Manser  v.  Back,  G  Ha.  443. 

(e)  In  Clinan  v.  Cooke,  1  Sch.  &  Lef.  39. 

(/)  Mason  v.  Armilage,  13  Ves.  25  ;  Pym  v.  Blackburn,  3  Yes.  34. 

(f/)  Higginson  v.  Clowes,  15  Ves.  510.  (A)  Ball  v.  Storie,  1  S.  &  S.  210. 

(i)  See  ante,  §  244.  (k)  Malius  v.  Freeman,  2  Ke.  25. 


MISTAKE.  •  157 

in  believing  tlmt  he  purchased  all  he  claimed  by  his  bill.(/)  Again, 
where  a  descriptiou  of  parcels  was  prepared  by  the  vendor's  solicitor  from 
a  previous  descriptiou,  which  had  been  prepared  by  another  solicitor  on 
the  report  of  a  surveyor,  and  the  description  turned  out  to  be  erroneous 
as  to  quantity,  the  court  would  not  enforce  the  sale  on  the  vendor,  unless 
the  case  were  one  for  compensation,  and  the  purchaser  would  submit  to 
it.(m)  And  where  a  vendor  sold  a  manor,  being  at  the  time  ignorant  of 
its  exact  extent,  and  both  parties  at  the  time  of  the  contract  believed 
that  what  it  included  was  something  different  from  what  it  really  did, 
and  the  manor  proved  to  comprise  valuable  property  that  the  vendor  did 
not  know  to  be  within  it,  the  purchaser's  bill  for  specific  performance 
was  dismissed. (h) 

*§  482.  Where  a  defendant  was  tenant  for  life  of  an  estate,  j.^.-,^  „^ 
under  a  settlement  which  contained  a  proviso,  that  if  he  pur-  L  ^  J 
chased  and  settled  an  estate  in  fee  simple  in  possession  in  some  conve- 
nient place  or  places  of  a  value  equal  to  or  greater  than  the  estate  com- 
prised in  the  settlement,  then  this  estate  should  become  the  property  of 
the  tenant  for  life;  and  he,  imagining  that  he  had,  with  the  concurrence 
of  his  wife,  an  absolute  power  of  disposition  over  the  settled  estate, 
entered  into  a  contract  for  sale  :  Sir  Thomas  Plumer  refused  to  carry  it 
into  effect  by  an  exercise  of  the  proviso  in  the  settlement,  considering 
that  such  a  performance  of  the  contract  would  be  attended  with  great 
difficulty,  and  that  the  defendant  had  not  contracted  for  that  purpose  or 
with  that  intention. (o) 

§  483.  "We  may  now  proceed  to  consider  the  effect  of  a  parol  variation 
set  up  by  the  defendant  as  a  ground  for  refusing  the  specific  perform- 
ance of  a  written  agreement  alleged  by  the  plaintiff. 

§  484.  (1)  Where  the  parol  variation  set  up  by  the  defendant  shows 
that  after  the  parties  to  the  contract  had  mutually  agreed  with  one  another, 
an  error  occurred  in  the  reduction  of  the  agreement  into  writing,  and  it 
appears  that  the  written  agreement  varied  according  to  the  defendant's 
contention  represents  the  true  contract  between  the  parties,  the  court 
will,  it  seems,  enforce  specific  performance  of  the  contract  so  varied. 

§  485.  Thus,  where  a  bill  was  brought  for  the  specific  performance  of 
an  agreement  to  grant  a  lease  at  a  rent  of  £9  per  annum,  and  the  defend- 
ant insisted  that  it  ought  to  have  been  a  term  of  the  agreement  that  the 
plaintiff  should  pay  all  taxes :  Lord  Hardwicke  granted  specific  perform- 
ance, and  directed  that  the  terms  of  the  verbal  agreement  should  be 
carried  out  by  the  covenants  to  be  inserted  in  the  lease. (;.»)  Again, 
where  a  bill  prayed  the  execution  of  an  ^agreement  for  the  sale  p^.^,„-, 
of  an  estate,  and  the  defendant  resisted,  and  proved  parol  declara-  L  ~  J 
tions  by  the  auctioneer  as  to  a  right  of  common,  and  that  previously  to 
the  sale  the  particular  had  been  altered  as  to  a  certain  right  of  common  ; 
the  plaintiff  proposed  that  his  bill  should  be  dismissed,  but  the  lord 

(Z)  Manser  v.  Back,  G  Ha.  443. 

(m)  Leslie  v.  Tompson,  9  Ila.  268.  See  also  per  Lord  Cottenham  iu  Alvanley 
v.  Kinnaird,  2  M'X.  &  G.  T  ;  Ilelsham  v.  Langley,  1  Y.  &  C.  C.  C.  175;  Neap  v. 
Abbott,  C.  P.  Coop.  Rep.,  (1837-1838,)  333. 

(n)  Baxcndale  v.  Seale,  19  Beav.  601.  (o)  Howell  v.  George,  1  Mad.  1. 

(p)  Joynes  v.  Statbam,  3  Atky.  388. 

NOVEMBER;    1858. — 11 


158       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

Chancellor  pursued  the  course  wliich  the  defendant  insisted  on,  which 
was  specifically  performing  the  agreement  as  contended  for  by  the  de- 
fendant, thus  saving  the  expense  of  a  cross-bill  by  him.(5') 

§  486.  (2)  But  where  the  mistake  or  parol  variation  set  up  by  the  de- 
fendant does  not  show  a  mere  mistake  in  the  reduction  of  the  contract 
into  writing,  but  that  one  party  understood  onethingand  the  other  another, 
there  is  no  such  contract  as  the  court  will  enforce,  and  the  plain tifi"'s  bill 
is  consequently  dismissed. 

§  487.  Therefore,  where  the  court  thought  that  the  plaintifi"  and  de- 
fendant had  both  been  mistaken  in  a  contract  which  contained  certain 
ambiguous  conditions  as  to  the  payment  for  timber,  the  bill  was  dis- 
missed, (r) 

§  488.  The  same  result  follows  where,  from  any  other  circumstance, 
the  enforcement  of  the  parol  variation  set  up  by  the  defendant  would  be 
unfair  on  either  party.  Accordingly,  where  the  plaintifi"  set  up  a  certain 
agreement  which  the  defendant  successfully  resisted  by  parol  evidence 
of  a  subsequent  contract,  and  the  plaintifi"  insisted  on  a  performance  of 
the  agreement  so  set  up ;  Sir  John  Strange  refused  to  grant  it,  on  the 
ground  that  it  would  be  a  surprise  on  the  defendant  to  insist,  under  the 
prayer  for  general  relief,  on  the  performance  of  an  agreement  which  was 
r*9im  "°^  P"*  ^^  issue  by  the  record. (s)  Again,  where  the  ^defendant 
>-  "^  ^-1  proved  a  parol  variation,  and  a  great  lapse  of  time  had  occurred, 
and  compensation  in  respect  of  the  term  in  dispute  must  have  been  allowed, 
if  the  contract  had  been  enforced,  for  the  period  whilst  the  doubt  about 
the  terms  of  the  contract  had  been  subsisting,  the  plaintiff"'s  bill  was  dis- 
missed, but  without  costs.  (^) 

§  489.  (3)  Where,  as  is  often  the  case,  the  court  does  not  decide  that 
the  parol  variation  falls  clearly  under  either  of  the  previous  cases,  but 
merely  that  the  defendant  conti-acted  under  mistake,  it  puts  the  plaintifi" 
to  his  election  either  to  have  his  bill  dismissed,  or  to  have  the  agreement 
executed  with  the  parol  variation. 

§  490.  Thus,  in  Higginson  v.  Clowes,(«)  where  the  conditions  of  sale 
were  likely  to  have  misled  the  defendant,  and  the  defendant  contended 
for  a  difi"erent  construction  from  that  of  the  plaintifi".  Sir  William  Grant 
ofi"ered  the  plaintifi"  either  to  have  his  bill  dismissed,  or  to  have  the 
contract  executed  on  the  defendant's  construction.  The  counsel  for 
the  defendant  contended  that  it  was  not  competent  to  the  plaintiff"  to 
have  his  bill  dismissed,  but  that  the  defendant,  without  filing  a  cross- 
bill, might  have  a  specific  performance  of  the  agreement.  Sir  William 
Grant,  however,  held  that  that  right  existed  where  the  defendant's 
construction  was  adopted  by  the  court ;  but  that  where,  as  in  the  case 
before  him,  the  court  did  not  decide  that  the  defendant's  construc- 
tion was  right,  but  only  that  he  had  contracted  under  a  mistake  cre- 
ated by  the  plaintifi",  the  bill  was  merely  dismissed.     In  a  subsequent 

(q)  Fife  V.  Clayton,  13  Ves.  54G.     See  also  Gwynn  v.  Lethbridge,  14  Ves.  585. 

(r)  Clowes  v.  riigginson,  1  V.  &  B.  524.  Bee  the  judgment  in  this  case  observed 
on  by  Lord  St.  Leonards,  Vend.  &  Pur.  133. 

(sj  Legal  V.  Miller,  2  Ves.  Sen.  299.  See  Sir  Wm.  Grant's  statement  of  this  case 
in  Price  v.  Dyer,  11  Ves.  3G4. 

(t)  Garrard  v.  Grinling,  2  Svv.  244.  {ti)   15  Ves.  516. 


MISTAKE.  159 

suit(i;)  on  the  same  agreement,  whore  the  parties  were  inverted,  Sir 
Thomas  Plumer,  holding  that  there  had  been  a  mistake  on  both  sides, 
refused  specific  performance  on  the  construction  of  the  defendant  in  the 
first  suit. 

§  491.  In  llamsbottom  v.  Gosden,(?'.-)  where  the  written  *agree-  r^^o-iq-i 
ment  confined  a  reference  of  expenses  to  those  of  conveyance,  L  J 
but  the  defendant  proved  by  the  parol  evidence  of  the  attorney  that  it 
was  the  intention  of  both  parties  that  the  plaintiff,  who  was  the  purchaser, 
should  also  pay  the  expenses  of  making  out  the  defendant's  title,  Sir 
William  Grant  put  the  plaintiff  to  his  election,  either  to  have  the  agree- 
ment performed  in  the  way  contended  for  by  the  defendant,  or  to  have 
his  bill  dismissed.  And  in  a  subsequent  case,(a:)  where  the  defendant 
proved  a  parol  variation.  Sir  William  Grant  again  left  the  plaintiff  to 
have  a  specific  performance  with  this  variation,  or  to  have  his  bill  dis- 
missed. 

§  492.  In  a  case(^)  before  Sir  Thomas  Plumer,  where  parol  evidence 
was  admitted  on  behalf  of  the  defendants  to  show  that  an  agreement  by 
several  persons  to  enter  into  bonds  in  ^1500  ought  to  have  been,  for  one 
joint-bond  in  that  amount,  by  all :  the  vice-chancellor  left  it  to  the  plain- 
tiff" to  have  his  bill  dismissed,  or  to  take  a  decree  for  the  joint-bond,  or 
to  take  an  issue  on  which  the  witnesses  could  be  examined. 

§  493.  In  Clarke  v.  Moore, (s)  where  a  landlord  sought  specific  per- 
formance of  an  agreement  for  a  lease,  and  the  defendant  set  up  a  parol 
agreement  to  abate  the  rent,  to  which  the  plaintiff  at  the  bar  submitted, 
the  lease  was  directed  with  the  abatement :  and  in  another  case, (a)  where 
it  appeared  that,  in  addition  to  the  written  contract,  there  had  been  an 
understanding  between  the  agent  of  the  plaintiff  and  the  defendant  as  tu 
payment  for  timber  and  certain  expenses,  the  plaintiff  consenting  to  adopt 
the  terms  as  part  of  his  contract,  specific  performance  was  granted. 

*§  494.  And  where  there  is  a  stipulation  which  one  of  the  j.^,.,,^,^ 
contracting  parties  may  reasonably  have  understood  to  be  implied  L  ""  J 
in  the  contract,  and  did  so  understand, — as  for  instance,  the  insertion 
of  a  usual  clause  in  a  lease, — specific  performance  will  not  be  enforced 
against  such  party  except  with  such  condition  included. (Z>)  And  where 
a  plaintiff  sought  relief  on  the  ground  of  a  covenant  for  renewal,  which  had 
for  one  hundred  and  fifty  j-ears  been  acted  on  in  a  manner  difi'erent  froni 
its  terms, — namely,  by  continually  increasing  the  fine,  and  not  the  rent  : 
the  court  held  that  the  covenant  could  not  be  carried  into  execution  ac- 
cording to  its  original  terms,  but  might  be  on  the  plaintiff"'s  submitting 
to  a  conscientious  modification  of  it,  to  meet  the  circumstances  of  the 
case.(t)  In  this  instance  acquiescence,  and  not  mistake,  was  the  ground 
of  the  variation. 

(f)  1  V.  &  B.  524. 

(w)  1  V.  &  B.  165.  Query,  why  was  not  specific  performance  enforced  on  the 
defendant's  contention,  as  the  error  appears  to  have  been  merely  in  the  reduction 
of  the  agreement  into  writing? 

(x)  Clarke  v.  Grant,  14  Ves.  519. 

{y)  Lord  Gordon  v.  Marquis  of  Hertford,  2  Mad.  106.         (z)  1  Jon.  &  L.  723. 

(a)  London  and  Birmingham  Railway  Company  v.  Winter,  Cr.  &  Ph.  57. 

(b)  Ricketts  V.  Bell,  1  De  G.  &  Sm.  335.     (c)  Davis  v.  Hone,  2  Sch.  &  Lef.  341. 


160      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  495.  The  parol  variation  maybe  alleged  by  the  plaintifiFfor  the  pur- 
pose of  offering  the  defendant  his  election  •,(d\  or  it  may  be  set  up  by  the 
defendant  by  way  of  defence.  If,  in  the  absence  of  its  being  thus  alleged, 
it  comes  out  on  the  evidence,  the  court  will  direct  an  inquiry  in  regard  to 
it  before  disposing  of  the  case.(e)  The  court  will  also  direct  an  inquiry 
where  the  variation  is  alleged  by  the  defendant,  and  so  far  proved  as  to 
raise  a  suspicion  of  its  existence,  and  yet  not  to  satisfy  the  court.  (/) 

§  496.  From  the  great  danger  which  would  arise,  the  court  will  not 
allow  a  person  to  escape  from  a  written  agreement  on  slight  parol  evi- 
dence of  mistake  on  his  own  part.  So  in  one  case,(^)  Vice-Chancellor 
r*99n  Wood  said  that  the  *oath  of  the  defendant  that  he  had  inserted 
L  "'"'  J  in  his  letter  a  term  which  he  in  fact  omitted,  and  the  oath  of 
his  agent  that  he  had  received  instructions  to  the  like  effect,  in  letting 
the  house,  would  not  have  sufficed ;  but  the  defendant  having  in  his  letter 
referred  to  the  offer  as  having  been  previously  made  to  another  party, 
and  that  party  swearing  that  in  the  offer  as  made  to  him  the  term  omitted 
in  the  subsequent  offer  was  contained,  the  court  held  that  sufficient  evi- 
dence of  mistake  on  the  defendant's  part  had  been  given,  and  allowed 
the  defence. 

§  497.  Where  both  parties  to  a  contract  are  at  the  time  of  the  con- 
tract in  mistake  or  error  as  to  the  matters  in  respect  of  which  they  are 
contracting,  this  will  avoid  the  contract  both  at  law  and  in  equity,  and 
the  court  will  accordingly  rescind  the  contract. 

§  498.  Thus,  in  Calverley  v.  Williams,(/i)  Calverley  brought  his  bill 
against  Williams  for  a  conveyance  of  seven  acres  of  copyhold  land,  part 
of  an  estate  sold  by  auction  and  purchased  by  the  plaintiff  as  being  com- 
prehended in  the  advertisement  of  the  sale,  and  described  as  in  the  pos- 
session of  Grroombridge.  The  defendant  resisted  this  claim,  on  the 
ground  that  he  did  not  intend  to  include  those  seven  acres,  or  know 
that  they  were  in  the  possession  of  Groombridge.  Lord  Thurlow, 
in  giving  judgment,  said,  '<  No  doubt,  if  one  party  thought  he  had  pur- 
chased bo7ia  fide,  and  the  other  party  thought  he  had  not  sold,  that  is  a 
p-round  to  set  aside  the  contract,  that  neither  party  may  be  damaged ; 
because  it  is  impossible  to  say,  one  shall  be  forced  to  give  that  price  for 
part  only  which  he  intended  to  give  for  the  whole,  or  that  the  other  shall 
be  obliged  to  sell  the  whole  for  what  he  intended  to  be  the  price  of  part 
only." 

§  499.  Where  both  vendor  and  purchaser,  of  an  alleged  estate  in  fee 
in  remainder  on  an  estate  tail,  were  ignorant  *that  at  the  time 
L  -'"'"'J  the  tenant  in  tail  had  suffered  a  recovery,  so  that  in  fact  no 
estate  in  remainder  existed,  the  court  rescinded  the  contract. (i) 

§  500.  But  where  neither  party  to  the  contract  is  in  error  as  to  the 
matters  in  respect  of  which  they  are  contracting,  but  there  is  an  error 
in  the  reduction  of  the  contract  into  writing  common  to  both  the  parties, 

(d)  Robinson  v.  Page,  3  Russ.  114. 

(e)  Parken  v.  Whitby,  T.  &  R.  3GG;  London  and  Birmingham  Railway  Com- 
pany V.  Winter,  Cr.  &  Ph.  57  ;  cf.  Ilelshara  v.  Langley,  1  Y.  &  C.  C.  C.  175. 

(/)  Van  V.  Corpe,  3  My.  &  K.  2G9.  {g)  Wood  v.  Scarth,  2  K.  &  J.  33. 

(h)   1  Vcs.  jnn.  210  ;  per  Lord  lirslcine  in  Stapylton  v.  Scott,  13  Ves.  427. 
(i)  Hitchcock  v.  Giddings,  4  Pri.  135. 


MISTAKE.  IGl 

there  the  court  interferes  for  the  purpose  of  reforming  the  contract,  and 
not  of  rescinding  it.(/i:)  For  by  so  doing  neither  party  will  be  damaged  : 
whereas  by  enforcing  it  as  it  stood,  one  party  would  be  necessarily  in- 
jured; and  by  rescinding  it,  both  would  be  deprived  of  the  benefit  of 
the  contract. 

§  501.  Accordingly  in  the  case(/)  already  stated,  where  the  question 
was  whether  a  certain  seven  acres  were  or  were  not  included  in  the  con- 
tract. Lord  Thurlow,  after  stating  that  if  the  parties  to  the  contract  had 
mistaken  each  other  in  this  respect,  it  must  be  rescinded,  said  :  "  Upon 
the  other  hand,  if  both  understood  the  whole  was  to  be  conveyed,  it 
must  be  conveyed.  But  again,  if  neither  understood  so, — if  the  buyer 
did  not  imagine  he  was  buying,  any  more  than  the  seller  imagined  he 
was  selling,  this  part,  then  this  pretence  to  have  the  whole  conveyed  is  as 
contrary  to  good  faith  upon  his  side,  as  the  refusal  to  sell  would  be  in 
the  other  case." 

§  502.  The  jurisdiction  of  the  court  in  this  respect  was  clearly  asserted 
by  Lord  Ilardwicke  in  the  case  of  Henkle  v.  Royal  Exchange  Assurance 
Company,(??i)  which  was  a  bill  seeking,  after  the  loss,  so  to  rectify  a 
policy,  on  the  ground  of  common  mistake,  as  to  turn  the  loss  on  the 
insurer,  which  but  for  such  variation  must  have  been  borne  by  the  in- 
sured. "■  No  doubt,"  said  his  lordship,  <'  but  this  court  has  jurisdiction 
to  relieve  in  respect  of  a  plain  mistake  in  ^contracts  in  writing,  ^^.^^„-. 
as  well  as  against  frauds  in  contracts ;  so  that  if  reduced  into  L  ~'"  -1 
writing  contrary  to  intent  of  the  parties,  on  proper  proof  that  would  be 
rectified  :"  but  for  want  of  such  proper  proof  the  bill  was  dismissed. 

§  503,  In  another  case,(«)  before  the  same  judge,  the  captain  of  an 
East  India  ship,  by  articles  of  agreement,  bargained  and  sold  all  his 
china  ware  and  merchandize  brought  home  in  his  last  voyage,  to  the  de- 
fendant :  the  articles  of  agreement  were  drawn  up,  from  minutes  made 
by  the  parties,  by  an  attorney,  who,  misunderstanding  the  transaction, 
drew  up  the  articles  in  an  erroneous  and  absurd  manner  :  the  captain, 
who  was  the  party  aggrieved  by  the  error,  brought  his  bill  for  an  account 
of  what  was  due  on  the  contract,  and  insisted  on  its  rectification  :  he 
was  allowed  to  give  parol  evidence  of  the  error  and  of  the  usage  of  trade, 
to  show  the  nature  of  the  real  transaction  and  the  consequent  mistake  in 
the  articles. 

§  504.  Parol  evidence  is  thus  admitted  to  show  the  common  mistake 
of  both  parties  in  reducing  the  contract  into  writing,  and  as  the  ground 
for  rectifying  it.  "I  think  it  impossible,"  said  Lord  Thurlow, (o)  "to 
refuse,  as  incompetent,  parol  evidence  which  goes  to  prove  that  the 
words  taken  down  in  writing  were  contrary  to  the  concurrent  intention 
of  all  parties." 

§  505.  But  in  order  thus  to  procure  the  rectification  of  a  contract,  the 
proof  must  be  clear,  irrefragable,  and  the  "  strongest  possible. "(/>)      As 

(k)  Murray  v.  Parker,  19  Bcav.  305. 

{1}  Calverlej  v.  "Williams,  1  Yes.  Jun.  210.  (m)   1  Ves.  Sen.  317. 

(n)  Baker  v.  Paine,  1  Ves.  Sen.  456 ;  G  Ves.  Jun.  336,  a. 

(o)  In  Lady  Shelbourne  v.  Lord  Inchiquin,  1  Bro.  C.  C.  341. 

(p)  Henkle  v.  Royal  Exchange  Assurance  Company,  1  Ves.  Sen.  317 ;  per  Lord 


162      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  point  to  be  proved  is  that  the  concurrent  intention  of  all  the  parties 
to  the  contract  was  different  from  that  expressed  by  the  written  agree- 
ment, the  court  will  attentively  regard  the  admission  or  denial  of  the  de- 
r*90A-\  fendant  as  one  of  those  parties, (5^)  and  will  attach  so  *much 
L  ^"^  J  weight  to  it  that  where  the  plaintiff's  proof  is  merely  the  recol- 
lection of  witnesses,  and  there  is  no  documentary  or  corroborating  evi- 
dence, and  the  defendant  denies  the  case  set  up  by  the  plaintiff,  it 
appears  that  the  plaintiff  is  without  remedy. (r) 

§  506.  Where  there  is  a  writing  by  which  the  executed  deed  is  to  be 
rectified,  and  in  that  writing  there  is  a  term  in  respect  of  which  there  is 
a  latent  ambiguity,  parol  evidence  may  be  admitted  to  explain  it,  and 
thus  assist  in  the  rectification  of  the  deed.(s) 

§  507.  It  must  not  be  supposed  that  it  is  every  species  of  mistake 
which  will  furnish  either  a  ground  for  defence  to  a  suit  for  specific  per- 
formance or  for  the  reform  or  rescission  of  a  contract. 

§  508.  The  maxim  Ignorantia  legis  non  excusat,  though  its  operation 
in  a  highly  complicated  state  of  society  and  law  is  sometimes  painful, 
may  yet  be  traced  back  to  the  soundest  principles  of  morals. (<)  Accord- 
ingly it  is  acted  on  by  courts  of  equity,  which  will  neither  set  aside  con- 
tracts for  mistake  in  law,(?<")  nor  allow  such  mistake  to  be  set  up  as  a 
ground  for  resisting  specific  performance  of  agreements  in  other  respects 
free  from  objection. (lA  Therefore  no  party  to  an  agreement  will  be 
allowed  to  show  that  the  legal  result  of  it  is  not  that  which  the  parties 
intended, — as,  for  example,  where  A.  agreed  to  sell  an  estate  to  B.,  and 
by  the  same  writing  B.  agreed  to  sell  an  estate  to  A.,  and  it  was  sought 
to  be  proved  by  parol  evidence  that  these  agreements,  which  in  law 
r*99c-i  were  independent  of  one  another,  were  *meant  by  the  parties  to 
L  ""'  -I  be  dependent,  the  evidence  was  rejected  both  by  Sir  John  Leach 
and  Lord  Brougham ;(?<;)  and  in  a  case  where  it  was  admitted  that  the 
effect  of  an  agreement  was  to  give  an  option  to  a  lessee  as  to  the  dura- 
tion of  the  term,  but  it  was  contended  that  this  was  not  in  the  contem- 
plation of  the  parties,  Sir  William  Grant  overruled  the  defence. (x) 

§  509.  Again,  as  in  cases  of  hardship  the  turning  out  of  events  in  a 
way  different  from  what  the  parties  anticipated,  will  not  furnish  a  ground 
of  defence ;  so  in  regard  to  mistake,  if  persons  choose  to  speculate  upon 

Eldon  in  Marquis  Townshend  v.  Stangoom,  6  Ves.  333;  Vouillon  v.  States,  25  L. 
J.  Ch.  8'?5,  (M.  R.) 

{q)  6  Ves.  334. 

(V)  Mortimer  v.  Shorhall,  2  Dr.  &  W.  3G3,  374.  lu  Pitcaira  v.  Ogbourne,  2  Ves. 
Sen.  375,  379,  the  evidence  was  considered  sufficient  to  overcome  the  defendant's 
denial. 

(s)  Murray  v.  Parker,  19  Beav.  305. 

(t)  Aris.  Nic.  Eth.  iii.  1.     See  also  Pascal  Lett.  Provin.  Let.  4. 

\u)  Marshall  v.  Collett,  1  Y.  &  C.  Ex.  232,  238  ;  Cockerell  v.  Cholmeley,  1  R.  & 
My.  418. 

[v)  PuUen  V.  Ready,  2  Atky.  587  ;  per  Lord  Alvanley  in  Gibbons  v.  Gaunt,  4 
Ves.  849 ;  Stocklcy  v.  Stockley,  1  V.  &  B.  23,  30 ;  Mildmay  v.  Ilungerford,  2  Vern. 
243.     See  also  Bilbie  v.  Lumley,  2  East,  4G9. 

{w)  Croome  v.  Lediard,  2  My.  &  K.  251.  The  decision  is  not  put  on  the  precise 
ground  of  ignorance  of  law  furnishing  no  excuse  ;  but  the  case  probably  may  be 
considered  on  that  ground. 

(z)  Price  v.  Dyer,  17  Ves.  356. 


MISTAKE.  163 

facts,  and  the  view  on  which  they  acted  proves  to  be  a  mistaken  one, 
that  circumstance  will  furnish  no  motive  on  which  the  court  will  act.(_y) 

§  510.  Where  there  is  a  mistake  of  both  parties,  but  uot  about  the 
very  subject  of  the  contract,  it  will  not  be  a  ground  for  rectifying  the 
contract.  Therefore  where  both  parties  were  under  a  mistake  as  to  the 
duration  of  a  leasehold  interest,  so  that  tlie  price  was  considerably  less 
than  if  the  actual  extent  of  the  interest  had  been  known,  and  the  ven- 
dors filed  a  bill  asking  for  a  reassignment  of  the  extra  term  which  the 
purchasers  took  under  the  assignment,  the  Vice-Chancellor  Knight 
Bruce  held  that  the  lease  was  the  substance  sold  and  not  a  term  of  the 
supposed  duration,  and  that  the  vendors  ought  to  have  known  what  was 
the  condition  of  the  property  they  proposed  to  sell,  and  accordingly  dis- 
missed the  bill.(i) 

§  511.  The  court,  on  a  clear  principle,  will  not  interfere  for  the  recti- 
fication of  a  written  contract  where  it  was  by  the  intention  of  the  parties 
to  it  that  the  writing  did  uot  comprise  all  the  terms  of  the  actual  agree- 
ment; for  what  is  *done  on  purpose  is  evidently  not  done  by  r*99f'-i 
mistake.  Therefore  where  there  was  an  agreement  for  an  an-  L  -1 
unity,  and  the  parties  to  it  designedly  omitted  a  proviso  for  redemption, 
thinking  it  would  render  the  transaction  usurious,  the  court  refused  to 
rectify  the  deed.(o)  The  parties  <'  desired  the  court,"  said  Lord  Eldon,(6) 
"  not  to  do  what  they  intended,  for  the  insertion  of  that  proviso  was 
directly  contrary  to  their  intention,  but  they  desired  to  be  put  in  the 
same  situation  as  if  they  had  been  better  informed,  and  consequently 
had  a  contrary  intention. "(c) 

§  512.  Where  the  parol  variation  which  the  plaintiif  or  defendant 
seeks  to  set  up  is  a  subsequent  agreement  in  parol  between  the  parties 
to  a  written  agreement,  the  case  in  nowise  comes  within  the  doctrine  of 
mistake,  and  the  parol  variation  is  inadmissible  under  the  Statute  of 
Frauds,  except  in  cases  where  the  refusal  to  perform  it  might  amount  to 
fraud.  ((Z) 

§  513.  Therefore  where  A.,  by  writing,  agreed  with  B.  to  grant  him 
a  lease,  to  commence  on  the  21st  of  April,  B.  being  merely  the  agent  of 
C. ;  and  subsequently  A.  and  C.  agreed  by  parol  that  the  lease  should 
commence  from  the  24th  of  June  instead  of  the  21st  of  April,  and  be 
made  to  C.  instead  of  to  B.,  and  C.  and  B.  sought  a  specific  performance 
of  the  written  agreement  as  varied  by  the  subsequent  parol  one,  a  plea 
of  the  Statute  of  Frauds  was  necessarily  allowed. (<)  And  where  there 
was  an  agreement  in  writing,  and  the  defendant  set  up  a  subsequent 
parol  agreement,  by  which  the  parties  mutually  abandoned  the  terms  of 
the  written  agreement  and  then  agreed  upon  new  terms :  Sir  William 

(y)  See  at  law,  Harris  v.  Loyd,  5  M.  &  W.  432. 
(z)  Okill  V.  Whittaker,  1  De  G.  &  Sm.  83,  affirmed  2  Phil.  338. 
(a)  Lord  Irnham  v.  Child,  1  Bro.  C.  C.  92;  Lord  Portmore  v.  Morris,  2  Bro.  C. 
C.  219;  Hare  v.  Shearwood,  3  Bro.  C.  C.  168  ;  S.  C.  1  Ves.  Jun.  241. 
(6)  In  Marquis  Townshend  v.  Stangroora,  G  Ves.  332. 

(c)  See  also  Pitcairn  v.  Ogbourne,  2  Ves.  Sen.  375 ;  of.  Cripps  v.  Jcc,  4  Bro.  C. 
C.  472. 

(d)  See  per  Sir  Wm.  Grant  in  Price  v.  Dyer,  17  Ves.  364. 

(e)  Jordan  v.  Sawkins,  3  Bro.  C.  C.  388;  S.  C.  1  Ves.  Juu.  402. 


164      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

Grrant  held  that  these  new  terms  were  merely  meant  to  modify  or  add  to 
r*9971  ^^®  terms  of  the  original  agreement;  *that  therefore  the  parol 
•-  ""^  -I  agreement  could  not  be  set  up  as  a  waiver  of  the  first,  and  that 
the  subsequent  terms  not  having  been  in  any  way  acted  on,  the  second 
agreement  formed  no  defence  to  the  first,  the  execution  of  which  he 
accordingly  directed. (/) 

§  514.  The  question  how  far  a  plaintiff"  can  enforce  specific  perform- 
ance of  a  contract  with  a  parol  variation,  or  in  other  words,  with  a  recti- 
fication of  a  mistake,  is  on  the  authorities  in  the  English  courts  not  per- 
fectly clear :  but  the  weight  of  authority  appears  distinctly  to  prevail  in 
favour  of  the  proposition  that  under  no  circumstances  can  a  plaintiff"  sue 
for  the  specific  performance  of  a  contract  with  a  parol  variation. 

§  515.  Before  proceeding  to  consider  the  cases  on  this  point,  we  may 
briefly  advert  to  principles. 

§  516.  With  regard  to  a  mistake  of  the  plaintiff"  alone,  it  is  at  once 
obvious  that  to  allow  him  to  correct  this  mistake,  and  enforce  the  con- 
tract so  corrected  on  the  other  party  to  it,  would  be  a  great  injustice. 

§  517.  With  regard,  however,  to  a  mistake  of  both  parties  to  a  con- 
tract in  the  reduction  of  the  contract  into  writing,  there  can  be  no  ob- 
jection in  point  of  justice  to  the  plaintiff''s  asking  to  have  that  mistake 
corrected,  and  to  have  the  real  contract  carried  into  execution.  This 
would  be  the  result,  if  the  plaintiff"  sued  for  specific  performance  of  the 
written  agreement,  and  then  submitted  to  a  parol  variation  set  up  and 
proved  by  the  defendant.  Again,  there  being  an  undoubted  jurisdic- 
tion for  the  reform  of  contracts,  and  also  a  jurisdiction  for  the  execution 
of  them,  there  seems  no  reason  why,  when  both  these  grounds  of  action 
are  necessary  to  give  the  plaintiff"  his  full  rights,  they  may  not  be  pro- 
ceeded on  in  one  and  the  same  suit.  For  it  seems  that  by  two  bills,  one 
for  reform  and  the  other  for  specific  performance,  the  plaintiff"'s  end  may 
now  be  attained. 

r*99Sn  *§  ^^^'  ^^^^  distinction  between  the  mistake  of  the  plaintiff" 
L  "'"'  J  only  and  the  mistake  of  both  parties  in  the  reduction  into  writing 
of  the  contract  should  be  borne  in  mind  ;  for  it  may  be  submitted  that 
some  confusion  exists  in  the  cases  in  our  courts  from  not  making  this 
discrimination;  and  further,  that  if  this  distinction  be  observed,  it  will 
appear  unjust  totally  to  exclude  the  plaintiff"  from  the  right  of  proving  a 
parol  variation  in  suits  for  specific  performance. 

§  519.  Whether  this  reasoning  be  incorrect  or  not,  there  are  a  series 
of  eases  which  seem  to  establish  in  our  courts  the  proposition,  that  the 
plaintiff"  can  in  no  case  be  allowed  to  sue  for  the  specific  performance  of 
an  agreement  with  a  parol  variation  :  these  may  now  be  considered. 

§  520.  In  Rich  v.  Jackson(r/)  the  plaintiff  sought  the  execution  of  an 
agreement  for  a  lease  with  a  variation  by  the  introduction  of  the  words 
"clear  of  all  taxes,"  and  the  witnesses  proved  the  meaning  of  the  par- 
ties to  have  been  as  the  plaintiff"  alleged ;  but  Lord  Eosslyu^/i)  said,  "  I 
cannot  find  that  this  court  has  ever  taken  upon  itself,  in  executing  a 
written  agreement  by  a  specific  performance,  to  add  to  it  by  anycircum- 

(/)  Price  V.  Dyer,  17  Ves.  356. 

Iff)  4  Bro.  C.  C.  514;  6  Ves.  334,  n.  (/()  6  Yes.  335,  n. 


MISTAKE.  165 

stance  tliat  parol  evidence  could  introduce;"  and  accordingly  the  parol 
evidence  was  rejected,  and  the  court  refused  to  execute  the  contract, 
except  upon  the  terms  of  the  written  agreement,  which  the  plaintiff  de- 
clined, and  accordingly  had  his  bill  dismissed. 

§  521.  In  Woolam  v.  Hearn(/)  the  point  was  fully  considered  by  Sir 
William  Grant.  The  plaintiff  alleged  an  agreement  with  the  defendant, 
by  which  the  defendant  was  to  grant  to  the  plaintiff  a  lease  of  a  certain 
house  at  <£60  per  annum  :  of  this  agreement  a  memorandum  was  drawn 
up  and  signed,  but  by  mistake,  or  with  some  unfair  view,  £73,  lO.s.  was 
inserted  as  the  rent,  instead  of  £60  :  by  her  bill,  the  plaintiff  sought 
specific  performance  of  the  ^agreement  rectified  as  to  the  amount  |-^.^^„-. 
of  rent.  The  evidence  of  the  plaintiff  appeared  to  Sir  William  L  ""^  J 
Grant  to  establish  her  position,  but  he  rejected  it  and  dismissed  the  bill, 
holding  that  though  it  would  have  been  admissible  for  the  plaintiff  if 
she  had  been  defendant,  yet  that  it  could  not  be  used  to  procure  a  decree. 

§  522.  The  same  doctrine  was  entertained  by  Lord  Redesdale,(/i)  and 
has  on  more  than  one  occasion  been  stated  by  Lord  Cottenham,  and  also 
by  Sir  James  Wigram.(^)  <<  It  is,"  said  Lord  Cottenham  in  one  case,(77i) 
"a  familiar  doctrine  in  this  court,  that,  although  to  resist  a  specific  per- 
formance, a  defendant  may  show,  by  parol,  that  the  written  document 
does  not  represent  the  contract  between  the  parties,  yet  a  plaintiff  can- 
not have  a  decree  for  a  specific  performance  of  a  written  contract  with  a 
variation,  upon  parol  evidence." 

§  523.  In  the  case  of  the  Attorney-General  v.  Sitwell,(«)  ]\Ir.  Baron 
Alderson  expressed  a  strong  opinion  in  accordance  with  the  doctrine  in 
question,  that  the  court  would  not  reform  and  then  enforce  an  executory 
contract,  except  perhaps  where  the  mistake  was  admitted  by  the  answer, 
which  might  seem  to  take  it  out  of  the  Statute  of  Frauds. 

§  524.  This  line  of  cases  may  be  closed  by  the  authority  of  Lord 
St.  Leonards.  In  a  case(rt)  which  came  before  his  lordship  when  chan- 
cellor of  Ireland,  there  was  a  written  agreement  for  a  lease,  and  then  a 
lease  executed  in  consequence  of  it,  and  a  bill  was  brought  for  the  reform 
of  the  lease,  not  by  the  agreement,  but  by  introducing  a  term  into  it  by 
parol.  His  lordship  stopped  the  argument  for  the  plaintiff,  considering 
that  it  was  really  against  first  principles  to  discuss  the  point,  and  said 
that  the  deed  could  *not  be  reformed  by  that  which  would  have  r^.^on-i 
been  inadmissible  if  the  agreement  were  resting  in  fieri,  and  the  L  ~  J 
bill  had  sought  a  specific  performance  of  it.  "  It  is  said,"  observed  his  lord- 
ship,(p)  <'  that  if  a  mistake  was  proved,  and  that  there  was  no  written 
agreement,  the  parol  evidence  would  be  admissible.  Perhaps  it  might, 
because  there  is  no  settled  rule  of  law  in  the  way,  and  as  there  is  no 
written  contract,  the  court  must  endeavour  to  ascertain,  by  the  best  evi- 

(j)  7  Ves.  211;  Higginson  v.  Clowes.  15  Ves.  516.  523;  Winch  v.  'Winchester. 
1  V.  &  B.  375,  378. 

{k)  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  38.         {I)  In  Manser  v.  Back,  G  Ha.  447. 

(m)  In  Squire  v.  Campbell,  1  My.  &  Cr.  480;  London  and  Birmingham  Rail- 
way Company  v.  Winter,  Cr.  k  Ph.  57.  61.  See  also  Emmett  v.  Dewhurst,  3  M'N. 
&  G.  587. 

(n)  1  Y.  &  C.  Ex.  559.  (o)  Davies  v.  Fitton.  2  Dr.  &  W.  225. 

{p)  p.  233. 


166      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

denee  it  can  get,  what  was  tlie  contract  of  tlie  parties,  and  whether  there 
was  any  mistake." 

§  525.  It  is  perhaps  not  perfectly  obvious  why,  if  parol  evidence 
would  be  admissible  to  correct  a  deed  executed  without  any  previous 
written  agreement,  it  should  yet  be  inadmissible  to  correct  a  written 
agreement  itself ;  for  the  only  principle  applicable  seems  to  be  that  writ- 
ing excludes  parol,  and  it  might  be  thought  that  this  would  apply  with 
more  force  to  a  solemn  deed  than  to  a  mere  preliminary  agreement, 

§  526.  It  may  perhaps  also  be  inquired  why,  if  the  court  presumes 
a  previous  agreement  resting  in  parol,  in  the  case  of  a  deed,  no  such 
presumption  is  made  in  the  case  of  a  written  agreement :  why  the  written 
agreement  may  not,  equally  with  the  deed,  be  corrected  by  reference  to 
such  a  previous  parol  agreement ;  and  why  the  court  does  not,  as  much 
in  the  one  case  as  in  the  other,  ascertain  what  that  agreement  was  by 
the  best  evidence  it  can  get. 

§  527.  The  current  of  authorities,  however  strong,  can  yet  scarcely  be 
considered  uniform  in  favour  of  the  position  that  the  plaintiff  can  never 
avail  himself  of  a  parol  variation. 

§  528.  There  are  dicta  of  Lord  Hardwicke's  which,  notwithstanding 
the  remarks  upon  them  of  Lord  Redesdale(g')  and  of  Sir  William  Grant, (/•) 
r*9^l1  ^™P^y»  '^^  ^^  submitted,  a  somewhat  *differeut  view  of  the  question 
L  "^  J  from  that  already  stated.  In  Walker  v.  Walker,(s)  John  Walker, 
a  brother  of  both  the  plaintiff  and  defendant,  agreed  with  the  plaintiff, 
by  parol,  that  if  the  plaintiff  would  surrender  his  copyhold  estate  for  the 
benefit  of  the  defendant,  he  John  Walker,  would  secure  an  annuity  for 
the  plaintiff's  life,  and  another  for  that  of  his  wife  :  upon  this,  John 
Walker  surrendered  his  copyhold  estate  to  the  defendant,  charged  with 
these  annuities;  but  the  plaintiff  did  not,  in  accordance  with  his  agree- 
ment with  John  Walker,  surrender  his  copyhold  estate  to  the  defendant, 
whereupon  the  defendant  refused  to  pay  the  annuities  :  the  plaintiff 
brought  his  bill  for  their  payment,  and  the  defendant  relied  on  the 
plaintiff's  breach  of  the  parol  agreement  with  John  Walker.  Lord 
Hardwicke  held  that  the  plaintifi''s  equity  was  rebutted  by  the  defen- 
dant's equity,  and  added,(if)  ''I  am  not  at  all  clear  whether,  if  the  de- 
fendant had  brought  his  cross  bill  to  have  this  agreement  established,  the 
court  would  not  have  done  it,  upon  considering  this  in  the  light  of  those 
cases,  where  one  part  of  the  agreement  being  performed  by  one  side,  it 
is  but  common  justice  it  be  carried  into  execution  on  the  other,  and  the 
defendant  would  have  had  the  benefit  of  it  as  an  agreement."  And  in 
Joynes  v.  Statliaui,(«)  Lord  Hardwicke  expressed  his  opinion  that  evi- 
dence of  the  omission,  in  an  agreement  for  a  lease,  of  the  expression 
'<  clear  of  taxes,"  might  have  been  given  by  the  defendant,  if  he  had 
been  plaintiff  seeking  a  specific  performance,  but  his  lordship  considered 
it  in  the  light  of  an  explanation  of  an  executory  agreement,  and  not  of 
a  variation. 

(7)  In  Clinan  v.  Cooke,  1  Sch.  &  Lef.  38.     (r)  In  Woolam  v.  Hearn,  7  Ves.  219. 
(s)  2  Atky.  98 ;  S.  C.  6  Ves.  Jun.  335,  n.  (t)  2  Atky.  100. 

(m)  3  Atky.  388.  See  this  and  the  preceding  case  observed  on  by  Lord  Redes- 
dale  ia  Clinan  v.  Cooke,  1  Sch.  &  Lef.  38,  39. 


MISTAKE.  167 

§  529.  There  was  a  case  before  Lord  Thurlow  which,  though  it  rests 
rather  on  the  ground  of  fraud  than  mistake,  *comes  very  near  to  r;|cnqo-i 
admitting  parol  evidence  on  the  part  of  the  plaintiff  to  supplj'  a  •-  J 
term  in  a  written  agreement.  It  was  a  bill  brought  by  the  original 
lessees  of  a  term  against  the  purchaser  from  them,  for  the  specific  per- 
formance of  an  agreement  to  indemnify  the  plaintiffs  against  all  rents 
and  covenants  in  the  lease,  and  to  execute  a  bond  for  securing  such  in- 
demnity. The  property  had  been  sold  by  auction,  and  the  conditions  of 
sale  did  not  stipulate  for  such  an  indemnity;  but  the  agreement  was 
proved  by  parol.  Lord  Thurlow  held  the  evidence  to  be  admissible,  and 
laid  it  down  that  where  an  objection  is  taken  before  the  party  executes 
the  agreement,  and  the  other  side  promise  to  rectify  it,  it  is  to  be  con- 
sidered a  fraud  on  the  party,  if  such  promise  is  not  kept :  and  his  lord- 
ship, after  an  issue  to  satisfy  himself  of  the  facts,  granted  specific  per- 
formance. (i») 

§  530.  Lord  Eldon  seems  to  have  been  of  opinion  that  parol  evidence 
was  admissible  for  the  plaintiff.  In  the  Marquis  Townshend  v.  Stan- 
groom, (%')  the  plaintiff  in  the  original  bill  sought  specific  performance 
with  a  parol  variation,  and  the  defendant,  by  a  cross  bill,  sought  the 
performance  of  the  written  agreement  as  it  stood.  "  I  will  not  say," 
said  his  lordship, (.r)  "  that  upon  the  evidence  without  the  answer  I 
should  not  have  had  so  much  doubt,  whether  I  ought  not  to  rectify  the 
agx'eement  upon  which  Stangroom  relies,  as  to  take  more  time  to  consider 
whether  the  bill  should  be  dismissed," — language  which  seems  to  imply 
that,  had  the  evidence  been  satisfactory,  the  agreement  might  have  been 
rectified  and  performed. 

§  531.  In  a  case(j/)  before  Yice-Chancellor  Knight  Bruce,  there  was 
an  assignment  by  deed  of  a  farming  lease  and  *stock  for  a  j.^-^^^^-, 
valuable  consideration  stated  in  the  deed,  and  it  was  proved  by  •-  "  '^J 
parol  that,  over  and  above  this  consideration,  there  was  an  agreement  to 
pay  the  plaintiff  £40  a  year  for  his  life,  and  to  find  him  during  the  same 
period  a  house  worth  £10  a  year ;  the  assignment  having  been  carried 
into  effect,  the  court  granted  specific  performance  of  the  parol  agreement 
at  the  suit  of  the  annuitant :  the  case  was  put  on  the  ground  of  an  addi- 
tional consideration,  which  may  be  proved  by  parol  when  not  inconsistent 
with  the  instrument,  (.r)  It  may  be  observed  that,  where  such  a  consi- 
deration is  executory  and  is  alleged  by  the  plaintiff  and  a  specific  per- 
formance of  it  obtained,  the  case  seems  to  afford  one  instance  in  which  a 
plaintiff  may  obtain  specific  performance  of  a  contract  with  a  parol 
variation. 

§  532.  In  the  recent  case  of  Martin  v.  Pycroft,(a)  the  plaintiff  alleged 

(v)  Pember  v.  Mathers,  1  Bro.  C.  C.  52,  per  Sir  "Win.  Grant  in  Clarke  v.  Grant, 
14  Ves.  524.     See  also  Harrison  v.  Gardner,  2  Mad.  198. 

(w)  6  Ves.  328.  (z)  p.  339. 

iv)  Clifford  V.  Turrell,  1  Y.  &  C.  C.  C.  138. 

(z)  Rex  V.  Scammonden,  3  T.  R.  474. 

(a)  2  De  G.  M.  &  G.  T85.  In  the  case  of  Robinson  v.  Page,  3  Russ.  114,  the 
parol  variations  to  which  the  plaintiff  by  his  bill  offered  to  submit  were  considered 
by  the  court  not  to  affect  the  plaintiff's  rights:  the  defendant  was  allowed  to  elect 
that  they  should  be  carried  into  effect  or  not,  by  reason  of  the  plaintiff's  offer,  and 
not  of  any  original  right  in  the  defendant. 


168      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

a  written  agreement  for  a  lease,  and  in  addition  a  parol  term, — namely, 
that  he  was  to  pay  the  defendant  £200  for  it,  and  prayed  specific  per- 
formance :  Vice-Chancellor  Parker  refused  it,  on  the  ground  that  the 
plaintiff  himself  showed  that  a  material  term  in  the  agreement  had  been 
omitted,  and  that  the  specific  performance  of  such  an  agreement  was  in- 
consistent with  the  Statute  of  Frauds.  This  decision  was  overruled  by  the 
lords  justices,  who  held  that  a  written  agreement,  in  the  absence  of  fraud 
or  mistake,  binds  at  law  and  in  equity,  according  to  its  terms,  although 
verbally  a  term  was  agreed  to  which  has  not  been  inserted  in  the  docu- 
ment, subject  to  this,  that  the  defendant  may  call  on  the  court  to  be 
r*9"J.T  '^^^*'i'^^  unless  the  plaintiff  will  consent  to  the  *omitted  term, 
L  "^  -I  and  that  the  present  case  came  within  that  rule.  The  term  was 
here,  however,  set  up  not  by  the  defendant,  but  by  the  plaintiff,  and  the 
case  seems  therefore  to  show  that  the  plaintiff  may  allege  a  parol  varia- 
tion, which,  if  set  up  by  the  defendant  and  submitted  to  by  the  plaintiff, 
might  have  been  introduced  into  the  agreement  as  specifically  performed 
by  the  court.  It  thus  seems  to  establish  a  very  important  limitation  on 
the  generality  of  the  rule,  that  a  plaintiff  can  never  allege  such  a  varia- 
tion. 

§  533.  In  this  state  of  the  authorities,  it  may  be  interesting  to  state 
the  opinion  of  American  jurists.  Though  the  doctrine  that  the  plaintiff 
can  never  adduce  parol  evidence  of  a  variation  in  suits  for  specific  per- 
formance has  been  acted  on  by  some  of  the  courts  of  that  country, (/>)  it 
has  been  combated  by  some  of  its  most  eminent  jurists.  ^'  It  is  in  effect," 
says  Mr.  Justice  Story,(c)  "  a  declaration  that  parol  evidence  shall  be 
admissible  to  correct  a  writing  as  against  a  plaintiff,  but  not  in  favour 
of  a  plaintiff  seeking  specific  performance.  There  is,  therefore,  no  mutu- 
ality or  equality  in  the  operation  of  the  doctrine.  The  ground  is  very 
clear,  that  a  court  of  equity  ought  not  to  enforce  a  contract  where  there 
is  a  mistake,  against  the  defendant  insisting  upon  and  establishing  the 
mistake;  for  it  would  be  inequitable  and  unconscientious.  And  if  the 
mistake  is  vital  to  the  contract,  there  is  a  like  clear  ground  why  equity 
should  interfere  at  the  instance  of  the  party  as  plaintiff,  and  cancel  it; 
and  if  the  mistake  is  partial  only,  why,  at  his  instance,  it  should  reform 
it.  In  these  cases  the  remedial  justice  is  equal;  and  the  parol  evidence 
to  establish  it  is  equally  open  to  both  parties  to  use  as  proof.  Why 
should  not  the  party  aggrieved  by  a  mistake  in  an  agreement  have  relief 
in  all  cases,  where  he  is  plaintiff,  as  well  as  where  he  is  defendant?  Why 
r*9Qf;i  should  not  parol  *evidence  be  equally  admissible  to  establish 
L  J  mistake  as  the  foundation  of  relief  in  each  case  ?  The  rules  of 
evidence  ought  certainly  to  work  equally  for  the  benefit  of  each  party." 

§  534.  In  delivering  judgment  in  the  case  of  Keisselbrack  v.  Living- 
stone,(('i)  Mr.  Chancellor  Kent  held  the  following  language:  <«  Why 
should  not  the  party  aggrieved  by  a  mistake  in  the  agreement  have  relief 
as  well  when  ho  is  plaintiff  as  when  he  is  defendant  ?  It  cannot  make 
any  difference  in  the  reasonableness  and  justice  of  the  remedy,  whether 
the  mistake  were  to  the  prejudice  of  the  one  party  or  the  other.     If  the 

(Ij)   1  Story,  Eq.  Jur.  g  161.  (c)  Id.  n. 

(d)  4  John.  Gh.  Hep.  148. 


PART  CANNOT  BE  ENFORCED.  169 

court  be  a  competent  jurisdiction  to  correct  such  mistakes  (and  that  is  a 
point  understood  and  settled,)  the  agreement,  when  corrected  and  made 
to  speak  the  real  sense  of  the  parties,  ought  to  be  enforced,  as  well  as 
any  other  agreement  perfect  in  the  first  instance.  It  ought  to  have  the 
same  efficacy  and  be  entitled  to  the  same  protection,  when  made  accu- 
rate under  the  decree  of  the  court  as  ivhen  made  accurate  hij  the  act  of 
the  parties."(^e\ 

§  5o5.  It  may  further  be  observed,  that  there  are  cases  though  not 
strictly  of  specific  performance,  yet  somewhat  resembling  them,  where  in 
the  same  suit  the  plaintiff  has  had  an  instrument  rectified,  and  then  ob- 
tained couseciuential  relief:  as,  for  example,  where  a  bond  and  deposit  of 
deeds  were  given  to  secure  an  advance,  and  the  bond  by  mistake  appeared 
to  be  usurious,  the  plaintiff  proved  the  mistake,  had  the  bond  rectified, 
and  was  held  entitled  to  the  consequential  relief  to  which  an  ordinary 
obligee  and  equitable  mortgagee  is  entitled. (/)  In  another  case,(^)  a 
client  entered  into  an  agreement  with  his  solicitor  for  the  payment  of  a 
fixed  sum  of  money  in  lieu  of  costs,  *and  the  agreement  con-  |-^.-,^„-. 
tained  mistakes  as  to  the  name  and  rights  of  the  client,  which,  L  "'  J 
if  construed  strictly,  would  have  excluded  the  solicitor  from  all  rights 
under  the  agreement.  In  consequence  of  these  mistakes,  the  solicitor 
by  his  bill  alleged  that  he  had  no  remedy  at  law,  and  he  accordingly 
prayed  that  the  agreement  might  be  rectified,  and  an  order  made  for  pay- 
ment of  the  sum  of  money  uuder  the  agreement,  as  if  at  the  time  of  its 
execution  it  had  expressed  the  intention  of  the  parties  :  the  court  accord- 
ingly made  a  decree  directing  the  payment  of  the  money. 


*CH  AFTER    XV.  [*237] 

OF  TUE  INCAPACITY  OF  THE  COURT  TO  PERFORM  PART  OF  THE  CONTRACT. 

§  53G.  The  court  will  not  compel  specific  performance  of  a  contract, 
unless  it  can  execute  the  whole  contract.  It  often  therefore  becomes 
important  to  inquire  whether  a  contract  is  entire  or  divisable,  or,  in 
other  words,  what  is  the  whole  contract  which  must  be  executed  :  aud  it 
is  proposed  in  the  present  chapter,  first,  to  inquire  what  contracts  arc 
divisible ;  and  secondly,  to  illustrate  the  general  doctrine  of  the  court 
above  stated. 

§  537.  It  is  obvious  that  the  decision  of  the  question  whether  a  con- 
tract is  entire  or  divisible,  must  depend  on  the  particular  nature  of  each 
contract,  and  the  terms  in  which  it  is  concluded  :  but  some  general  rules 
may  be  gathered  from  the  cases. 

§  538.  A  contract  for  the  sale  of  property  in  one  lot  will  generally  be 
considered  indivisible.     Thus,  in  a  case  where  two  undivided  seventh 

(c)  Sec  per  Lord  Eldon  in  Cook  v.  Richards,  10  Ves.  441. 

(/)  Ilodgkinson  v.  Wydlt,  9  Beav.  566.      (^r)  Stednian  v.  Collett,  17  Beav.  G08. 


170       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

shares  of  land  were  sold  in  one  lot,  the  court  refused  to  enforce  speci- 
fic performance  where  a  good  title  could  be  made  to  one  seventh  only  :(a) 
and  the  purchaser  of  the  entirety  will,  of  course,  not  be  compelled  to  take 
six  undivided  seventh  parts  of  the  estate. (i)  And  so  in  a  recent  case, 
where  two  persons  were  owners  of  an  estate  in  undivided  moieties,  and 
an  agreement  was  entered  into  by  them  with  the  plaintiff  to  lease  the 
r*9^sn  coals  *under  it,  which  agreement  the  plaintiff  could  not  prove 
L  "^  -I  against  one  of  the  owners,  the  bill  was  dismissed  against  the 
other,  as  he  had  never  contracted  for  one  share  alone ;  if  he  had  held 
himself  out,  and  contracted  as  the  owner  of  the  whole,  then  the  case 
would  have  been  different. (c) 

§  539.  But  where  properties  are  of  two  descriptions, — as,  for  example, 
a  ship  and  the  freight, — the  fact  that  they  are  both  included  in  one 
instrument,  and  dealt  with  for  one  entire  sum,  does  not  seem  conclusively 
to  render  the  contract  indivisible. ((Z) 

§  540.  After  some  vacillation  in  the  older  cases, (e)  it  is  decided  at  law, 
that  where  property  is  sold  in  distinct  lots,  there  is  a  separate  contract 
for  each  lot,(y)  each  buyer  having  a  complete  right  of  action  after  he  is 
declared  the  purchaser  of  each  lot.(^)  And  in  equity,  the  same  is  jjrinia 
facie  the  case,  so  that  in  the  absence  of  special  circumstances,  a  vendor 
is  entitled  to  compel  the  purchaser  of  two  lots  to  complete  his  purchase 
of  the  one,  though  he  may  fail  in  making  out  a  title  to  the  other.  (A)  But 
where,  from  the  nature  of  the  contract,  or  the  property  that  is  the  sub- 
ject of  it,  or  upon  matters  known  to  both  parties,  one  of  them  can  prove 
that  the  one  transaction  was  dependent  on  the  other,  the  two  form  one 
contract,  although  there  may  be  no  express  statement  to  that  effect. (^) 
And  the  parties  by  their  subsequent  dealing  may  convert  two  or  more 
distinct  contracts  into  an  entire  one,  as  by  entering  into  one 
L  J  *agreement  for  the  sale  of  the  several  subject-matters  at  one  aggre- 
gate price  '.(/c)  thus,  where  A.  purchased  by  auction  three  lots,  of  100 
shares  each,  and  after  the  sale  received  the  shares,  paid  the  price,  and 
received  a  bill  of  parcels  describing  the  transaction  as  a  sale  of  300  shares  : 
it  was  held,  that  as  each  lot  was  knocked  down,  there  was  a  distinct  con- 
tract for  the  sale  of  100  shares,  but  that  the  subsequent  dealings  showed 
that  the  parties  treated  the  transaction  as  one  entire  sale  of  300  shares. (Z) 

§  541.  The  mere  fact  of  different  prices  being  fixed  for  different  parts 
of  the  subject-matter  of  the  contract,  will  not  necessarily  made  it  divisi- 

{a)  Roffey  v.  Shatcross,  2  Bro.  C.  C.  118,  n.;  S.  C.  s.  n.  Roffey  v.  Shollcross,  4 
Mad.  227. 

(h)  Dalby  v.  Pullen,  3  Sim.  29.  (c)  Price  v.  Griffith,  1  De  G.  M.  &  G.  80. 

(d)  Mestaer  v.  Gillespie,  11  Ves.  621,  G29. 

(e)  See  the  cases  reviewed  by  Lord  Brougham  in  Casamajor  v.  Strode,  2  My.  & 
K.  124.     Chambers  v.  Griffiths,  1  Esp.  150,  seems  to  be  overruled. 

(/)  James  v.  Shore,  1  Starlv.  42G  ;  Roots  v.  Lord  Dormer,  4  B.  &  Ad.  11;  per 
Coleridge,  J.,  in  Seatou  v.  Booth,  4  A.  &  E.  53G. 

(ff)  Emmerson  v.  Heelis,  2  Taunt.  38,  45. 

(/i)  Lewin  v.  Guest,  1  Russ.  325.  See  also  Bnckmaster  v.  Harrop,  7  Ves.  341; 
S.  C.  13  Ves.  456. 

(i)  Casamajor  v.  Strode,  2  My.  &  K.  722  ;  Poole  v.  Shergold,  2  Bro.  C.  C.  118  ; 
S.  C.  1  Cox,  273 ;  and  at  law,  Gibson  v.  Spurrier,  Pcake,  Add.  C.  49. 

(k)  Dykes  v.  Blake,  4  Bing.  N.  C.  JOS.        (l)  Franklyu  v.  Lamond,  4  C.  B.  637. 


PART  CANNOT  BE  ENFORCED.  171 

ble  :  so  where  a  person  went  into  a  shop  and  bought  various  goods  at 
distinct  prices  for  each,  the  contract  was  still  held  to  be  single. (w)  And 
where  one  price  was  fixed  for  the  land,  and  another  (a  valuation  price) 
for  the  timber,  and  the  vendor  could  not  show  a  title  to  all  the  timber  by 
reason  of  the  copyhold  tenure  of  parts  of  the  estate,  which  were  not  dis- 
tinguishable from  the  freehold  :  the  court  held  it,  on  the  agreement,  to 
constitute  one  contract,  that  consequently  the  vendor  was  only  bound 
to  make  out  the  title  according  to  the  contract,  and  that  the  title  to  the 
land  was  the  title  to  the  timber ; — and,  as  the  conditions  of  sale  provided 
for  the  copyhold  tenure  as  to  the  lands,  the  contract  was  enforced  as  a 
whole.  («) 

§  542.  In  a  case  in  which,  by  the  same  agreement,  A.  contracted  to 
sell  an  estate  to  B.,  and  B.  contracted  to  sell  another  estate  to  A.,  the 
contracts  in  respect  of  the  two  estates  were  held  to  be  independent  of  one 
another  :(o)  whilst  in  a  case  of  cross  contracts  for  the  sale  of  goods,  the 
Court  of  Exchequer  held  the  contracts  dependent,  (p) 


*§  543.  It  is,  as  we  have  already  seen,  a  principle  of  the  court,  rn:i)An-i 
that  it  will  not  compel  specific  performance,  unless,  it  can  at  the  L  "^  J 
time  execute  the  whole  contract  on  both  sides,  or  at  least  such  part  of  it 
as  the  court  can  ever  be  called  on  to  perform.  Therefore,  where  there 
was  an  agreement  between  two  neighbouring  landholders  to  change  the 
course  of  a  stream,  and  one  of  the  terms  of  the  agreement  was  that  if  any 
damage  should  accrue  to  the  lands  of  the  defendant  from  a  dam  which 
was  agreed  to  be  erected,  the  plaintiff  would  give  an  equivalent  in  land 
to  the  defendant,  the  quantity  of  land  to  be  ascertained  by  arbitrators; 
this  being  a  thing  which  the  court  could  not  do  at  once  in  jmcsenti,  and 
the  court,  holding  that  the  parties  entering  into  a  covenant  to  do  it  would 
not  be  a  specific  performance  of  the  contract,  refused  to  interfere,  as  the 
whole  agreement  could  not  be  carried  into  eSect.(q)  And  where  the 
owner  of  certain  patents  entered  into  an  agreement  with  certain  persons, 
who  with  himself  were  to  form  a  company,  to  the  promotion  of  which  he 
was  to  give  his  services  for  two  years,  and  to  do  his  best  to  improve  the 
invention  for  the  benefit  of  the  company,  and  on  the  refusal  of  these 
parties  to  go  forward  with  the  company,  the  patentee  filed  a  bill  for  the 
specific  performance  of  the  agreement :  the  court  held,  on  demurrer,  that 
as  it  would  have  been  impossible  to  enforce  against  the  plaintifi"the  stipu- 
lations on  his  part,  he  could  not  sue  for  performance ;  and  further,  that 
the  court  could  not  carry  the  contract  into  effect  by  directing  the  parties 
to  execute  a  deed,  for  the  agreement  was  to  do  certain  acts,  and  not  to 
execute  covenants  to  do  thcm.(>-) 

§  544.  So  wherever  that  which  the  plaintiff  is  to  give  as  the  considera- 
tion moving  from  him  is  something  to  be  done  at  a  future  time,  and 

(m)  Baldey  v.  Parker,  2  B.  &  C.  37. 

(n)  Crosse  v.  Lawrence,  9  Ha.  4G2 ;  Crosse  v.  Keene,  9  Ua.  469. 

(o)  Croome  v.  Lediard,  2  My.  &  K.  251. 

(p)  Atkinson  v.  Smith,  14  M.  &  W.  G95. 

(q)  Gervais  v.  Edwards,  2  Dr.  &  W.  80. 

(r)  Stocker  v.  Wcdderburn,  3  K.  &  J.  393. 


172       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

wliicli  the  court  cannot  enforce,  specific  performance  of  the  agreement 
will  be  refused. (s) 

r*oiM  *§  ^'^^-  ^^^  principle  that  the  court  will  not  partially  enforce 
L  "^  -I  contracts  is  illustrated  by  many  other  cases :  Thus,  where  there 
was  a  partnership  contract  for  an  absolute  term  of  years,  leaving  unde- 
fined the  amount  of  capital  and  the  manner  in  whicli  it  was  to  be  pro- 
vided, being  a  contract  which  in  its  entirety  the  court  could  not  enforce, 
the  court  refused  to  enforce  it  in  part,  by  refusing  the  representatives  of 
a  deceased  partner  a  decree  for  the  dissolution  of  the  partnership  and  the 
sale  of  the  partnership  property. (;)  And  in  a  recent  case,(M)  the  court 
refused  to  separate  the  parts  of  an  award  which  were  capable  of  specific 
performance  from  those  which  were  not. 

§  546.  Where  the  contract  stipulates  for  future  acts,  but  is  silent  as 
to  any  deed  to  be  executed  to  secure  their  performance,  the  court,  as  we 
have  seen,  will  not  consider  the  execution  of  such  a  deed  any  perform- 
ance of  the  stipulation;  other  cases  have  arisen,  where  the  agreement 
contemplates  some  deed  or  obligation.  Where  there  was  a  contract  to 
execute  works  of  such  a  nature  that  the  court  could  not  superintend 
their  performance,  and  in  the  contract  was  a  stipulation  that  the  con- 
tractors should  give  a  bond  to  secure  the  performance  of  the  contract : 
the  court  refusing  to  decree  performance  of  the  works,  refused  also  to 
decree  the  execution  of  the  bond,  as  that  would  have  been  a  piecemeal 
performance  of  the  contract,  and  the  stipulations  as  to  the  works  were 
the  substance  of  the  agreement,  and  that  as  to  the  bond  only  incident  to 
them.(y) 

§  547.  But  where  the  contract  is  to  do  a  thing,  and  to  execute  a  deed 
for  that  purpose,  and  this  deed  is  not  merely  incidental,  but,  so  to  speak, 
covers  the  whole  of  the  executory  part  of  the  contract,  the  court  will,  it 
r*9  i-?n  seems,  enforce  *the  contract  by  the  execution  of  the  deed,  though 
L       "^J  the  acts  to  be  done  be  future,. and  to  be  done  from  time  to  time.(Mj) 

§  548.  The  cases  on  marriage  contracts  strongly  illustrate  the  prin- 
ciple that  the  entire  contract  must  be  carried  into  eifect.  With  regard 
to  these,  it  has  been  urged  that  as  the  court  interferes  in  behalf  of  those 
who  are  purchasers,  or  considered  as  such  by  the  court,  but  declines  to 
aid  volunteers,  so  when  the  court  specifically  executes  a  settlement,  its 
interference  should  be  confined  to  limitations  in  favour  of  purchasers, 
and  not  extended  to  volunteers.  The  court,  however,  has  applied  the 
principle  that  the  whole  or  no  part  of  the  contract  shall  be  executed,  to 
marriage  contracts  as  well  as  to  other  agreements.  "  There  is  no  in- 
stance," said  Lord  Hardwicke,^.^:)  "of  decreeing  a  partial  performance 
of  articles, — the  court  must  decree  all  or  none ;  and  where  some  parts 
have  appeared  very  unreasonable,  the  court  have  said  we  will  not  do 

(.s)  Per  Wignim,  V.  C,  in  Waring  v.  Manchester,  Sheffield  and  Lincolnshire 
Railway  Company,  7  Ha.  492. 

{1}  Downs  V.  Collins,  6  Ha.  418. 

(m)  Nickels  v.  Hancock,  7  De  G.  M.  &  G.  300.  See  also  Vangittart  v.  Vansit- 
tart,  4  K.  &  J.  C2. 

(v)  South  Wales  Railway  Company  v.  Wythe?,  1  K.  &  J.  18G ;  S.  C.  5  De  G.  M. 
&  G.  880. 

(w)  Granville  v.  Belts,  19  L.  J.  Ch.  32.        (x)  In  Goring  v.  Nash,  3  Atky.  190. 


PART  CANNOT  BE  ENFORCED.  173 

that,  and  therefore,  as  we  must  decree  all  or  none,  the  bill  has  been  dis- 
missed." And  in  a  recent  case,(y)  where  a  husband  sued  the  heir  of  his 
wife,  who  was  the  settlor,  on  a  covenant  to  settle  lands,  the  specific  per- 
formance was  not  restricted  to  his  estate,  but  carried  to  a  limitation  to  a 
niece  of  the  wife,  who  was  of  course  a  collateral. 

§  549.  The  cases  of  exception,  or  rather  of  apparent  exception,  to  the 
rule  in  question  may  now  be  considered. 

§  550.  (1)  From  the  cases  of  contracts  which  cannot  be  fully  executed, 
must  be  discriminated  those  cases  where,  though  under  the  agreement 
some  future  acts  may  remain  to  be  done  which  the  court  could  not  en- 
force, yet  at  the  time  of  the  bill  the  plaintiff  has  acquired  a  right,  per- 
fect in  itself  in  respect  of  past  transactions. 

§  551.  Thus  where,  in  a  contract  for  the  execution  of  *rail-  r^^.^  ,o-, 
way  works,  previous  to  their  completion,  the  contractors  filed  a  L  "^  J 
bill  against  the  railway  company,  alleging  fraud  in  the  engineer,  iu 
withholding  certificates  of  work  done,  and  asking  amongst  other  things 
for  an  account  of  work  done  :  it  was  held  on  demurrer,  that  though  the 
works  were  not  complete,  and  though  the  court  might  not  be  able  speci- 
fically to  perform  such  an  agreement,  the  plaintiffs  had  a.  right,  perfect 
in  itself,  of  which  they  had  been  deprived  by  the  alleged  acts  of  the  de- 
fendants, and  that  they  were  therefore  entitled  to  some  relief  in  equity. (s) 
And  so  it  seems,  that  if  by  a  partnership  agreement  it  was  stipulated 
that  accounts  should  be  made  up  half-yearly,  and  that  one  partner  should 
have  a  salary  proportionate  to  the  profits  to  be  so  ascertained,  he  mio-bt 
from  time  to  time  file  bills  to  have  the  accounts  so  taken  according  to 
agreement,  though  the  other  terms  of  the  contract  might  be  beyond  the 
jurisdiction  of  the  court. (a) 

§  552.  To  this  principle  we  may  probably  refer  the  case  of  Lytton  v. 
The  Great  Northern  Railway  Company,(i)  where  there  being  an  ao-ree- 
ment  by  the  company  to  make  and  maintain  a  siding  so  long  as  it  should 
be  of  convenience,  the  clause  as  to  maintaining  it  was  held  no  objection 
to  a  bill  for  the  specific  performance  of  the  agreement  to  make  it,  the 
question  of  repairs  being  a  matter  for  inquiry  when  a  breach  of  that 
part  of  the  contract  should  occur. 

§  553.  (2)  In  the  next  place,  it  must  be  observed,  that  where  the 
contract  can  be  completely  performed  at  the  time,  though  there  may  be 
future  acts  dependent  on  it,  the  court  will  be  able  to  grant  specific  per- 
formance :  as,  e.  g.,  a  contract  for  the  immediate  sale  of  timber  to  be 
cut  down  at  a  future  time,  and  the  purchase-money  for  it  to  be  paid  by 
instalments. (c)  The  cases  already  stated,  where  the  court  *will 
direct  the  execution  of  a  covenant  to  do  future  acts,  illustrate  L  "J 
the  same  principle. (^Z] 

§  554.  (3)  It  seems  generally  very  questionable,  how  far  the 'principle 
that  the  court  will  not  perform  part  of  a  contract  because  it  cannot  per- 
ry) Davenport  v.  Bishopp,  2  Y.  &  C.  C.  C.  451  ;  S.  C.  1  Phil.  698. 

(z)  Waring  v.  Manchester,  Sheffield,  and  Lincolnshire  Railway  Company,  7  Ha 
482. 

(a)  Per  Wigram,  V.  C,  in  last  case,  7  Ha.  49G.  (i)  2  K.  &  J.  394. 

(c)  Gervais  v.  Edwards,  2  Dr.  &  W.  80.  (rf)  Ante,  g  546, 

November,  1858.— 12 


174       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

form  all,  applies  to  cases  where  the  impossibility  of  carrying  out  a  part 
is  due  to  the  default  of  the  defendant  who  sets  up  this  defence.  To 
permit  it  to  prevail,  would  be  counter  to  the  maxim,  that  no  man  shall, 
take  advantage  of  his  own  wrong.  In  the  case  of  the  defendant's  only 
possessing  a  part  of  the  interest  which  he  has  stipulated  to  sell,  the 
defect  as  to  the  other  part  is,  as  we  have  seen,  no  bar  to  specific  perform- 
ance at  the  suit  of  the  purchaser. (e)  In  one  case,  there  was  an  agree- 
ment between  three  railway  companies  having  reference  to  a  purchase 
and  an  amalgamation  ;  for  the  purchase  no  further  parliamentary  powers 
were  needed,  but  for  the  amalgamation  they  were,  and  as  regards  one  of 
the  companies,  they  could  not  be  obtained,  because  a  majority  of  its 
shareholders  were  adverse  to  the  scheme  :  in  a  suit  relating  to  the  jmr- 
chase,  the  last-mentioned  company  set  up  as  a  defence  the  impossibility 
of  carrying  out  the  agreement  as  to  the  amalgamation  ;  but  Lord  Cotten- 
ham  overruled  the  demurrer,  and  doubted  whether  the  defendant  com- 
pany could  say  to  the  plaintiffs,  that  they  should  not  have  the  benefit  of 
such  part  of  the  contract  as  the  defendants  could  perform,  because  they 
could  not,  without  an  act  of  pai-liament,  perform  the  whole,  and  they 
declined  applying  to  parliament  to  give  them  the  necessary  powers,  (/j 

§  555.  (4)  It  was  formerly  laid  down  that  when  the  positive  part  of 
an  agreement  could  not  be  performed  by  the  court,  it  would  not  enforce 
the  negative  by  injunction  :  so  that,  for  example,  where  an  actor  had 
.....  agreed  to  act  at  *a  certain  theatre,  that  being  an  agreement  which 
L  "*  J  the  court  could  not  enforce,  it  refused  to  restrain  him  by  injunc- 
tion from  acting  elsewhere  :(r/)  and  where  there  was  a  contract  for  hiring 
and  exclusive  service  during  seven  years,  and  an  agreement  for  partner- 
ship at  the  end  of  that  time  on  such  terms  as  should  be  mutually  agreed 
on ;  the  agreement  being  one  which  the  court  could  not  perform  as  a 
whole,  it  refused  to  enforce  by  injunction  the  covenant  for  exclusive 
service. (/A  Again,  where  the  defendants  had  agreed  to  furnish  the 
plaintiffs  with  the  drawings  for  maps  which  the  plaintiffs  were  exclu- 
sively to  sell ;  the  court  being  unable  to  compel  the  defendants  to  fur- 
nish these  drawings,  refused  an  injunction  to  restrain  the  defendants 
from  themselves  selling  the  maps.(/) 

§  55G.  This  principle,  whilst  held  as  law,  was  yet  considered  subject 
to  several  limitations  or  exceptions.  Thus  it  was  established,  that  where 
a  partner  agreed  to  exert  himself  for  the  benefit  of  the  concern,  and  not 
to  carry  on  the  partnership  trade  except  as  a  partner,  the  court  would, 
if  the  partnership  was  subsisting,  enjoin  against  a  breach  of  the  last 
stipulation  though  it  certainly  could  not  enforce  the  former ;(/.;)  and  it 
was  further  decided  that  the  principle  would  not  be  carried  so  far  as  to 
prevent  an  injunction,  because  it  might  afterwards  appear  that  there 

(e)  Ante,  §  290. 

(/)  Great  Western  Railway  Company  v.  Birmingham  and  Oxford  Junction  Rail- 
way Company,  2  Phil.  597,  G05. 

(ff)  Kemble  v.  Kean,  G  8im.  3?>3.  (h)  Kimberley  v.  Jennings,  6  Sim.  340. 

(t)  Baldwin  v.  Society  for  Diffusing  Useful  Knowledge,  9  Sim.  393  ;  Clarke  v. 
Price,  2  J.  Wils.  157. 

(k)  Morris  v.  Coleman,  18  Ves.  437  ;  S.  C.  6  Sim.  335  ;  Kemble  v.  Kean,  G  Sim. 
333. 


PART  CANNOT  BE  ENFORCED.  175 

was  some  part  of  the  agreement  which  the  court  could  not  compel  the 
defendant  to  perform. (Z) 

§  557.  But  it  is  now  clearly  established  by  the  recent  case  of  Lumley 
V.  Wagner,(??i)  that  where  there  is  an  agreement  in  part  positive  and  iu 
part  negative,  and  the  positive  part  is  such  as  the  court  might  be  unable 
to  enforce  *specifically,  it  may  yet  interfere  in  respect  of  the  (->|,-9  ip-i 
negative  part  by  means  of  injunction.  In  that  case,  the  defend-  L  "^  J 
ant  entered  into  an  agreement  with  the  plaintiff  to  sing  at  his  theatre, 
and  not  to  sing  at  any  others;  and  Lord  St.  Leonards  granted  an  injunc- 
tion restraining  the  defendant  from  singing  at  any  other  theatre  than 
the  plaintiff's,  though  the  specific  performance  of  the  positive  part  would 
have  been  certainly  beyond  his  power.  The  principle  was  acted  on  in 
some  earlier  cases  ;(/i)  but  iu  the  case  just  cited  all  the  authorities  on 
the  subject  were  quoted,  and  the  principle  above  stated  laid  down  by  the 
lord  chancellor  after  much  discussion.  In  a  subsequent  case,  Vice-Chan- 
cellor  Wood  considered  that  the  principle  established  in  the  preceding 
case  did  not  apply  only  where  there  were  express  negative  provisions, 
and  accordingly  he  enjoined  an  actor  who  had  entered  into  an  agreement 
to  perform  at  Sadler's  Wells  Theatre  (but  without  any  stipulation  that 
he  would  not  perform  elsewhere),  from  acting  at  any  other  place  than 
the  plaintiff's  theatre  on  the  nights  on  which  he  had  so  agreed  to  act.(o') 

§  558.  In  cases  where  the  agreement  on  which  an  injunction  is  sought 
contains  stipulations,  some  of  which  the  court  can,  and  others  which  it 
cannot  enforce,  and  the  latter  are  wholly  on  the  plaintiff's  part,  no  diffi- 
culty arises ;  because,  though  the  court  may  be  unable  to  enforce  them 
directly,  it  does  so  indirectly,  inasmuch  as  the  moment  the  plaintiff  fails 
in  performing  his  part  of  the  agreement,  the  injunction  would  be  dis- 
solved. 0?) 

§  559.  (5)  Where  an  arrangement  come  to  between  two  persons  is 
intended  to  be  of  a  complex  character,  partly  *legal  and  partly  |-^9_,--, 
honorary,  the  court  will,  if  there  be  no  other  impediment,  speci-  L  •"  '  J 
fically  perform  the  legal  contract,  leaving  the  honorary  part  of  the  arrange- 
ment to  rest,  as  was  intended,  on  the  honour  of  the  parties.  So  that, 
where  this  latter  part  is  malum  prohihitum  and  not  malum  in  se,  it  will 
not  obstruct  the  court  in  its  execution  of  the  other  part  of  the  arrange- 
ment which  amounted  to  contract. (<^) 

§  5G0.  (6)  When  the  agreement  is  in  my  manner  alternative,  so  that 
the  parts  of  it  are  mutually  exclusive  one  of  the  other,  and  the  plaintiff 
has  a  right  to  ask  for  the  performance  of  one  part,  the  court  may  treat 
this  as  independent  of  the  other  :  thus,  in  an  agreement  to  grant  a  lease 
with  an  option  to  the  lessee  to  purchase,  this  option  was  held  so  far  in- 
dependent of  the  agreement  for  a  lease,  that  a  default  on  the  part  of  the 

(I)  Whittaker  v.  Howe.  3  Beav.  383,  395.  (m)  1  De  G.  M.  &  G.  G04. 

(n)  Dletrichsen  v.  Cabburn,  2  Ph.  52;  Great  Northern  Railway  Compauj- v. 
Manchester,  Shefifield  and  Lincolnshire  Railway  Company,  5  De  G.  &  Sni.  1:38. 
See  also  Hills  v.  Croll,  1  De  G.  M.  &  G.  G27,  n. ;  S.  C.  2  Phil.  60. 

(o)  Webster  v.  Dillon,  3  Jur.  N.  S.  432. 

(p)  Stocker  v.  Wedderburn,  3  K.  &  J.  393,  405. 

(q)  Carolan  v.  Brabazon,  3  Jon.  &  L.  200,  213. 


176      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

plaintiff  in  insuring,  whicli  would  have  prevented  his  suing  for  a  lease, 
did  not  prevent  his  suing  on  the  option  to  purchase. (r) 

§  561.  (7)  In  a  recent  case,(s)  Sir  J.  Romilly  appears  to  have  ex- 
pressed the  opinion,  that  where  a  part  of  the  contract  which  the  court 
could  not  perform  has  been  actually  performed  before  suit,  the  incapacity 
of  the  court  as  to  this  part  would  furnish  no  defence  as  to  the  other  part. 
In  such  a  case  there  would  seem,  however,  to  have  been  no  original 
mutuality. 


[*248]  ^CHAPTER   XVI. 

OP  DEFECT   IN   THE   SUBJECT-MATTER   OF   THE   CONTRACT. 

§  562.  Another  ground  on  which  the  specific  performance  of  a  con- 
tract may  be  resisted  is  the  existence  of  some  essential  defect  in  the  sub- 
ject-matter of  it,  or  some  variation  from  the  description  contained  in  the 
contract.  This  is  of  course  not  a  question  of  title ;  the  acceptance  of 
the  title  will  not  prevent  the  defendant  from  setting  up  the  defence  that 
the  title  relates  to  a  different  subject-matter  to  that  which  he  contracted 
for.(a)  The  cases  in  which  this  variation  arises  between  the  thing  and 
some  representation  made  in  respect  of  it  are  considered  under  the  head 
of  misrepresentation  :(b)  the  cases  in  which  no  such  representation  has 
been  made  I  now  propose  briefly  to  consider. 

§  563.  The  material  distinction  to  be  considered  is  between  defects 
which  are  patent  and  visible  to  every  one  and  those  which  are  latent j 
for  just  as  at  law  a  warranty,  however  general,  will  not  be  taken  to  in- 
(ilude  defects  apparent  at  the  time  of  the  bargain,  as  no  one  could  have 
been  deceived  by  them  ;  so,  whilst  latent  defects  are  a  ground  for  re- 
fusing specific  performance,  patent  defects  are  not.(c) 
r*'>ion  §  ^  Accordingly  where  a  man  bought  *a  meadow,  with  a 
L  "^  -J  road  round  it  and  a  way  across  it,  which  were  not  noticed  in  the 
description,  Lord  Rosslyn  nevertheless  enforced  specific  performance 
with  costs  :(d)  and  the  circumstance  that  an  estate  described  as  inclosed 
in  a  ring-fence  was  not  so,  was  held  by  Sir  William  Grant  no  defence  to 
a  suit  for  performance. (e) 

§  565.  But  where  the  objection  taken  by  the  purchaser,  who  was  de- 
fendant, was  the  existence  of  certain  water  casements,  and  it  was  proved 
that  the  defendant  had  long  lived  in  the  neighbourhood,  was  well 
acquainted  with  the  property,  had  in  passing  the  road  constantly  seen 
some  of  the  wells  on  the  lower  land  supplied  from  the  upper  land,  which 

(r)  Green  v.  Low,  22  Beav.  625. 

(.s)  Hope  V.  Hope,  22  Beav.  351,  but  see  S.  C.  before  the  L.  J.  J.  26  L.  J.  Ch. 
417,  425. 

(rt)  Bentley  v.  Craven,  17  Beav.  204.  (b)  Ante,  §  425  et  seq. 

(c)  Dyer  v.  Hargrave,  10  Ves.  505  ;  ante,  §  446;  cf.  Pothier,  Tr.  du  Contrat  de 
Vcnte,  part  ii.  ch.  i.  sec.  3,  §  1. 

(d)  Oldfield  V.  Round,  5  Ves.  508,  and  see  Pope  v.  Garland.  4  Y.  &  C.  Ex.  404. 

(e)  Dyer  v.  Hargrave,  10  Ves.  505. 


DEFECT    IN    SUBJECT- MATTEK.  177 

was  the  subject  of  the  contract,  and  had  on  the  morning  of  the  sale  been 
upon  the  land  ;  the  Vice-Chancellor  Knight  Bruce  expressed  his  opinion, 
but  without  giving  the  reasons,  that  no  such  degree  of  knowledge  or 
notice  had  been  proved  as  to  preclude  the  purchaser  from  taking  the 
objection. (/)  In  this  case,  it  may  be  observed,  the  objection  to  the 
upper  lands  was  the  existence  of  certain  rights  granted  with  the  lower 
lands  to  enter  the  upper  lands,  fetch  water  from  a  spring,  and  to  cut  and 
cleanse  gutters  for  the  conveyance  of  the  water  to  the  lower  lands  and 
similar  easements.  Now  the  wells,  gutters,  and  all  the  other  objects  of 
sense  might  probably  have  existed  without  necessarily  involving  these 
easements  ;  and  if  so,  it  follows  that  the  defect  was  in  its  nature  latent 
and  not  really  patent. 

§  5G6.  "With  regard  to  the  latency  of  defects,  it  is  to  be  observed  that 
the  court  will  not  demand  a  minute  examination  on  the  part  of  the 
purchaser,  even  where  the  vendor  does  not  make  any  representation  :  to 
render  a  defect  patent  it  must,  it  seems,  be  an  obvious  and  unmistakable 
object  of  sense. 

*§  567.  The  defect  need  not  be  in  the  actual  physical  sub-  ^^^.^-. 
ject-matter  of  the  contract,  it  may  consist  in  the  existence  of  L  "'  J 
some  liability  of  which  the  other  party  is  ignorant ;  so  that  where  the 
vendor  of  leasehold  property  had  before  the  sale  received  from  his  land- 
lord a  notice  of  re-entry  in  default  of  the  premises  being  repaired,  and 
did  not  communicate  the  existence  of  this  notice  to  the  purchaser,  who 
however  knew  of  the  state  of  the  premises,  the  contract  was  held  void  at 
the  suit  of  the  purchaser,  who  had  been  ejected  ;(</)  and  the  undisclosed 
fact  that  the  property  in  question  is  liable  to  be  taken  under  the  powers 
of  an  act  of  parliament,  is  a  valid  ground  for  rescinding  the  contract  at 
law.(/i) 

§  5G8.  The  existence  of  a  defect,  unknown  at  the  time  of  the  contract 
both  to  the  vendor  and  the  purchaser,  will  not,  it  seems,  be  a  bar  to 
the  en/orcement  of  the  contract,(<')  unless  probably  where  the  defect  is 
such  as  lies  properly  in  the  knowledge  of  the  vendor. 

§  569.  Where  the  variation  between  the  thing  and  the  description  of 
it  seems  I'ather  in  the  nature  of  an  excess  than  of  a  defect,  and  so  in 
favour  of  the  purchaser,  the  vendor  is  nevertheless  disabled  from  en- 
forcing the  conti'act  on  an  unwilling  purchaser.  Thus,  freehold  laud 
cannot  be  forced  on  a  purchaser  who  bought  it  as  copyhold.  "  It  is  un- 
necessary," said  the  master  of  the  rolls,  '<  for  a  man  who  has  contracted 
to  purchase  one  thing  to  explain  why  he  refuses  to  accept  another.''^/,-) 

§  570.  Where  an  uncertainty  exists  as  to  the  subject-matter  of  the  con- 
tract, but  the  description  by  which  it  was  *sold  is  equally  unccr-  |-^,,_..-. 
tain,  there  is  of  course  no  variation  or  defect.  Therefore  where  pro-  L  ~     -^ 

(/)  Shackleton  v.  Sutcliffe,  1  De  G.  &  Sm.  609. 

Iff)  Stevens  v.  Adamson,  2  Stark.  422.  (A)  Ballard  v.  Way,  1  M.  &  W.  520. 

(?)  Per  Wigram,  V.  C,  in  Lucas  v.  James,  8  Ha.  418.  See  also  Parkinson  v.  Lee, 
2  East,  314. 

(k)  Ayles  V.  Cox,  16  Beav.  23.  See  the  observations  of  Lord  St.  Leonards  in 
this  case,  Vend.  &  Pur.  251 ;  cf.  also  Stanton  v.  Tattersall,  1  Sm.  &  G.  529.  Copy- 
holds cannot  of  course  be  forced  on  a  purchaser  of  freeholds,  Hick  v.  Phillips,  Prec. 
in  Ch.  575. 


178      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

perty  was  sold  by  a  general  description  as  being  part  freehold  and  part 
leasehold,  and  the  exact  boundary  between  the  freehold  and  leasehold  part 
of  the  estate  could  not  be  ascertained,  this  circumstance  furnished  no 
defence  to  a  suit  for  specific  performance. (?) 

§  571.  A  purchaser  may  of  course  contract  for  the  purchase  of  a  thing 
with  all  faults,  and  he  then  takes  on  himself  the  knowledge  of  the  title 
and  of  the  qualities  of  the  subject.  The  cases  on  the  effect  of  this  clause 
in  a  contract  seem  to  show, — first,  that  such  a  contract  is  binding,  how- 
ever many  may  be  the  defects  in  the  subject,  and  whether  they  be  latent 
or  patent,  and  whether  discoverable  by  the  purchaser  or  not  :(m\  secondly, 
that  it  will  not  protect  the  vendor  where  he  takes  positive  means  to  con- 
ceal the  defects, (?i)  as  where  a  vessel  was  moved  off  her  ways  where  she 
lay  dry,  into  the  water  in  order  to  conceal  her  worm-eaten  bottom  and 
broken  keel  :(o)  and  thirdly,  that  it  will  not  protect  the  vendor  when  he 
makes  a  misrepresentation,  and  that  misrepresentation  is  embodied  in 
the  contract,(p)  or  is  both  false  and  fraudulent. (g')  The  court  refuses 
to  direct  any  inquiry  as  to  title,  where  the  sale  is  with  all  faults,  and  the 
vendor  only  sells  such  interest  as  he  has.(?') 

§  572.  The  eff"ect  on  the  specific  performance  of  the  contract  of  a  defect 
in  the  thing  sold,  or  a  variation  from  the  description,  is  twofold,  accord- 
ing to  its  magnitude.  If,  in  the  view  of  the  court,  it  be  unessential, 
r*9K9-|  t^i6  contract  may  *yet  be  performed,  but  with  compensation;  if 
■-  "^  "'-I  it  be  essential,  it  confers  on  the  party  injured  the  right  of  res- 
cinding the  contract  and  defeating  its  performance. (s)  The  distinction 
between  these  two  classes  of  cases  will  be  considered  in  the  chapter  on 
compensation. 


[*253]  *CH  AFTER    XVII. 

OF    THE  WANT  OF  A  GOOD  TITLE. 

§  573.  Where  the  vendor  of  land  sues  the  purchaser  for  a  specific 
performance  of  the  contract,  the  defendant  is  entitled  to  have  the  plain- 
tifi''s  bill  dismissed,  if  it  appear  that  the  plaintifi'  cannot  make  out  to  the 
land  a  title  free  from  reasonable  doubt.  The  defendant  may  have  the 
bill  thus  dismissed  at  the  hearing,  provided  the  defect  in  title  has  been 
prominently  put  forward  in  the  pleadings,  and  the  court  can  then  decide 

(l)  Monro  v.  Taylor,  3  M'N.  &  G.  713.  As  to  conditions  respecting  such  a 
mingling  of  tenures,  see  also  Crosse  v.  Laurence,  9  Ha.  462  ;  Crosse  v.  Keene,  id. 
469. 

(m)  Baglehole  v.  Walters,  3  Camp.  154;  Pickering  v.  Dowson,  4  Taunt.  779, 
overruling  Lord  Kcnyon's  decision  in  Mellish  v.  Motteux,  Peake,  115,  that  the  sti- 
pulation in  question  only  applies  to  faults  which  the  purchaser  can  discover  or  the 
vendor  is  ignorant  of. 

(n)  Baglehole  v.  Walters,  3  Camp.  154. 

(o)   Schneider  v.  Heath,  3  Camp.  50G.  (p)  S.  C. 

{(/)  Early  v.  Garrett,  9  B.  &  C.  928 ;  Springwell  v.  Allen,  2  East,  448,  n. 

(r)  See  post,  §  830.  (s)  Stanton  v.  Tattersall,  1  Sm.  &  G.  529. 


WANT    OF    A    GOOD    TITLE.  179 

the  question. ((f)  But  the  question  more  usually  arises  after  the  refe- 
rence of  title  has  been  made. 

§  574.  The  old  practice  of  the  court  in  all  cases  of  dispute  as  to  the  title 
of  the  estate  sold,  was  to  decide  either  for  or  against  the  validity  of  the  title, 
and  either  to  compel  the  purchaser  to  take  it  as  good,  or  to  dismiss  the 
bill  on  the  score  of  its  being  bad. (/>)  But  the  case  of  Marlow  v.  Smith, (c) 
before  Sir  Joseph  Jekyll,  followed  by  Shaplaud  v.  Smith, ((/)  before  Lord 
Thurlow,  established  the  present  practice  of  allowing  a  class  of  titles 
which,  without  affirming  them  to  be  bad,  the  court  considers  so  doubtful 
as  that  it  will  not  compel  a  purchaser  to  take  them.(«) 

*§  575.  Lord  Eldon,  though  feeling  himself  bound  to  adhere  r^j^.^r  i-i 
to  this  as  an  established  rule,  on  more  than  one  occasion  express-  L  "  J 
ed  his  dissent  from  it  on  principle,  and  bewailed  the  great  mischiefs 
which  had  resulted  from  it.(/)  The  rule  has  also  been  objected  to  as 
being  logically  absurd,  as  well  as  practically  injurious ;  for  every  title,  it 
is  said,  is  good  or  bad,  and  if  so,  the  court  ought  to  know  nothing  of  a 
doubtful  title. 

§  576.  Notwithstanding  such  doubts,  it  may  be  submitted  that,  hav- 
ing regard  to  the  nature  of  a  suit  for  specific  performance,  the  rule  in 
question  is  necessary  in  point  of  practical  justice  and  correct  in  reason- 
ing. It  must  be  remembered  that  the  decree  of  the  court  in  such  a  suit 
is  a  judgment  hi  personain  and  not  in  rem  ;  that  it  binds  only  those 
who  are  parties  to  the  suit,  and  those  claiming  through  them,  and  in  no 
way  decides  the  question  in  issue  as  against  the  rest  of  the  world  :  and 
that  doubts  on  the  title  of  an  estate  are  often  questions  liable  to  be  dis- 
cussed between  the  owner  of  the  estate  and  some  third  person  not  before 
the  court,  and  therefore  not  bound  by  its  decision.  If  therefore  there 
be  any  reasonable  chance  that  some  third  person  may  raise  a  question 
against  the  owner  of  the  estate  after  the  completion  of  the  contract,  the 
court  considers  this  to  be  a  circumstance  which  renders  the  bargain  a 
hard  one  for  the  purchaser,  and  one  which  in  the  exercise  of  its  discre- 
tion it  will  not  compel  him  to  execute.  Though  every  title  must  in  itself 
be  either  good  or  bad,  there  must  be  many  titles  which  the  court  cannot 
pronounce  with  certainty  to  belong  to  either  of  these  categories  in  the 
absence  of  the  parties  interested  in  supporting  both  alternatives,  and 
without  having  heard  the  evidence  they  might  have  to  produce,  and  the 
arguments  *they  might  be  able  to  urge  :  and  it  is  in  the  absence  j-^n-.^ 
of  these  parties  that  the  question  is  generally  agitated  in  suits  L  J 
for  specific  performance.  The  court,  when  fully  informed,  must  know 
■whether  a  title  be  good  or  bad  ;  when  partially  informed,  it  often  may 

(a)  Lucas  v.  James,  7  Ha.  418,  425.  [h)  See  1  Bro.  C.  C.  T6,  n. 

(c)  2  P.  Wms.  198. 

{(i)  1  Bro.  C.  C.  75.  Lord  Eldon  was  in  the  habit  of  treatinj^  this  as  the  first 
case  in  -which  the  present  rule  had  prevailed  :  but  in  Sloper  v.  Fish,  2  V.  &  B.  149, 
Sir  Wm.  Grant  referred  to  the  earlier  case,  and  stated  that  the  rule  in  question 
had  been  repeatedly  acted  on  by  Lord  Ilardwiclve. 

(«)  See  also  Cooper  v.  Dennej  4  Bro.  C.  C.  80:  S.  C.  1  Vcs.  Jun.  565  ;  Sheffield 
V.  Lord  Mulgrave,  2  Ves.  Jun.  526;  Koake  v.  Kidd,  5  Ves.  G47  ;  Willcox  v.  Bel- 
laers,  T.  <fe  R.  491. 

(/")  In  Vancouver  v.  Bliss,  11  Ves.  4G5,  and  in  Jervoise  v.  Duke  of  Xorthumber- 
land,  1  J.  &  W.  568. 


180      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS, 

and  ought  to  doubt.  If  there  be  any  want  of  strict  reasoning  about  the 
principles  on  which  the  court  acts  in  this  matter,  it  is  perhaps  in  decid- 
ing any  title  to  be  good  or  bad,  rather  than  in  declaring  some  to  be 
doubtful.  But  it  is  with  practical  certainty  and  practical  doubts  that 
the  court  concerns  itself.((7) 

§  577.  It  is  by  no  means  easy  to  express  what  amount  of  doubt  upon 
a  point  there  must  be  to  induce  the  court  to  refuse  specific  performance. 
One  mode  of  measuring  it  has  been  by  applying  the  question,  whether 
it  is  such  a  title  as  that  the  judge  himself  would  lend  his  own  money 
upon  it.  The  court  "  has  almost  gone  the  length,  "  said  Lord  Eldon, 
"  of  saying  that  unless  it  is  so  confident  that  if  it  had  £95,000  to  lay  out 
on  such  an  occasion,  it  would  not  hesitate  to  trust  its  own  money  on  the 
title,  it  would  not  compel  a  purchaser  to  take  it.'Y/i) 

§  578.  In  another  case,(i)  Lord  Eldon  put  the  question  for  the  court 
as  being,  "  whether  the  doubt  is  so  reasonable  and  fair,  that  the  property 
is  left  in  his  (the  purchaser's)  hands  not  marketable  :"  but  a  marketable 
title  being  "  one  which,  so  far  as  its  antecedents  are  concerned,  may  at 
all  times  and  under  all  circumstances  be  forced  on  an  unwilling  purcha- 
P^prp-,  ser,"(/c)  the  observation  seems  not  *much  to  assist  us  in  mea- 
L  "^     -I  suring  how  great  the  doubt  must  be. 

§  579.  Though  the  court  may  entertain  an  opinion  in  favour  of  the 
title,  yet  if  it  be  satisfied  that  that  opinion  may  fairly  and  reasonably  be 
questioned  by  other  competent  persons,  it  will  refuse  specific  performance. 
Thus,  in  a  case0  before  Sir  John  Leech,  he  expressed  the  strong  incli- 
nation of  his  opinion  to  be  in  favour  of  the  title,  and  yet  refused  the 
relief  sought  by  the  plaintiff;  and  in  the  recent  case  of  Pyrke  v.  Wad- 
dingham,(m)  in  which  the  Vice-Chanceller  Turner  discussed  the  sub- 
ject now  before  us,  he  expressed  an  opinion  in  favour  of  the  title,  but 
nevertheless  dismissed  the  vendor's  bill  with  costs.  Still  less,  of  course, 
will  the  court  force  a  title  on  a  purchaser  in  opposition  to  the  decision 
of  another  court,  though  it  may  think  that  decision  to  be  wrong. («) 

§  580.  Further,  the  court  will  never  compel  a  purchaser  to  take  a  title 
where  the  point  on  which  it  depends  is  too  doubtful  to  be  settled  with- 
out litigation,  or  where  the  purchase  would  expose  him  to  the  hazard  of 
such  proceedings.  The  court  will  not,  to  use  the  favourite  expression, 
compel  him  to  buy  a  lawsuit. (o) 

(ff)  How  far  the  practical  ill  effects  of  this  rule  might  be  lessened  by  giving  the 
court  a  power  of  making  declaratory  decrees,  is  a  question  worthy  of  the  atten- 
tion of  law  reformers. 

(A)  In  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  569.  See  also  Sheffield 
V.  Lord  Mulgrave,  2  Ves.  Jun.  52G ;  per  Turner,  V.  C,  in  Pyrke  v.  Waddingham, 
10  Ha.  9. 

(i)  In  Lord  Braybroke  v.  Inskip,  8  Ves.  428. 

(k)  Per  Turner,  V.  C,  in  Pyrke  v.  Waddingham,  10  Ha.  8. 

(I)  Price  V.  Strange,  G  Mad.  159,  164. 

(m)  10  Ila.  1.  In  the  case  of  Wrigley  v.  Sykcs,  21  Bcav.  337,  the  master  of  the 
rolls  considered  that  if  the  court  is  of  opinion  that  a  title  is  clear,  it  will  enforce 
specific  performance,  and  will  not  speculate  whether  any  other  court  would  come 
to  an  opposite  conclusion.  But  Lord  St.  Leonards  has  expressed  his  doubt  upon 
this  case.  Vend.  322. 

(n)  Rose  v.  Calland,  5  Ves.  186. 

(o)  Price  v.  Strange,  6  Mad.  159,  165;  Sharp  v.  Adcock,  4  Russ.  374. 


WANT    OF    A    GOOD    TITLE.  181 

§  581.  But  though  the  court  is  thus  jealous  in  protecting  purchasers 
from  risk,  it  is  not  the  suggestion  of  a  mere  theoretical  doubt  that  will 
discharge  them  from  their  contracts.  The  court,  to  use  Lord  Ilardwicke's 
language  in  one  case,(p)  "must  govern  itself  by  a  moral  certainty,  for  it 
is  impossible  in  the  nature  of  things  there  should  be  a  *mathe-  r^i)cj-i 
matically  certainty  of  a  good  title,"  or  as  it  was  expressed  by  l  "  -I 
Baron  Alderson,  there  must,  to  render  the  title  bad  for  this  purpose,  "  be 
a  reasonable,  decent  probability  of  litigation. "(g')  Accordingly,  in  the 
case  before  Lord  Hardwicke,  his  lordship  enforced  specific  performance, 
although  there  was  a  reservation  of  mines,  because  the  court  was  satisfied 
that  there  was  no  subject-matter  for  the  reservation  to  act  upon,  or  that 
all  legal  right  to  exercise  it  had  ceased. (?•)  And  in  a  recent  case,(.><)  the 
master  of  the  rolls  forced  on  an  unwilling  purchaser  a  title  depending  on 
the  validity  of  a  purchase  by  a  solicitor  from  his  client,  on  proof  of  the 
validity  of  the  transaction,  though  given  in  the  absence  of  the  client,  who, 
it  was  urged,  might  possess  other  evidence  and  ultimately  set  aside  the 
sale. 

§  582.  Accordingly,  the  court  will  compel  specific  performance  where 
the  title  depends  on  a  presumption,  provided  it  be  such,  that  if  the  ques- 
tion were  before  a  jury,  it  would  be  the  duty  of  the  judge  to  give  a  clear 
direction  in  favour  of  the  fact ;  but  not  where  the  evidence  would  be  left 
to  the  consideration  of  the  jury.(^)  So  where  the  recital  of  deeds  raised 
the  presumption  that  they  contained  nothing  adverse  to  the  title,  the 
mere  loss  of  the  deed,  where  the  title  was  fortified  by  sixty  years'  undis- 
puted possession,  was  held  not  to  create  a  reasonable  doubt :(«)  and 
so  again,  where  the  validity  of  a  title  depended  on  no  execution  having 
been  taken  out  under  certain  judgments,  between  the  27th  September, 
1769,  and  the  23rd  May,  1770,  and  nothing  was  shown  to  have  been 
done  which  could  be  referred  to  such  an  execution,  the  court  considered  the 
title  *good.(i')  To  this  head  may  perhaps  be  referred  the  fact,  that  |-^.-,^q 
the  court  will  compel  specific  performance  of  a  title  depending  on  L  ^  J 
the  invalidity  of  a  voluntary  conveyance  as  against  a  purchaser  for  valua- 
ble consideration  without  notice,(tt')  the  court,  as  it  seems,  acting  on  the 
presumption  of  the  conveyance  not  having  been  rendered  valid  by  subse- 
quent dealings. 

§  583.  We  have  already  seen  that  where  the  evidence  would  be  left 
to  a  jury  to  draw  their  own  conclusion  from  it,  if  the  case  were  before 
such  a  tribunal,  there  the  presumption  is  not  held  to  be  sufficient  to 
justify  the  court  in  forcing  the  title  on  a  purchaser.  To  this  principle 
we  may  probably  refer  many  of  those  cases  where  a  doubt  as  to  a  fact 
has  prevailed :  as  where  the  title  depended  upon  proof  that  there  was 

(p)  In  Lyddal  v.  Weston,  2  Atkv.  20. 
(g)  In  Cattell  v.  Corrall,  4  Y.  &  C.  Ex.  237. 

(r)  See  as  to  this  case  per  Sir  W.  Grant  in  Seaman  v.  Yawdrey,  16  Yes.  393; 
Martin  v.  Cotter,  3  Jon.  &  L.  49G. 

(«)  Spencer  v.  Tophara,  22  Beav.  573. 

(0  Emery  v.  Grocock,  G  Mad.  54;    Barnwell  v.  Harris,  1  Taunt.  430. 

{u)  Frosser  v.  Watts,  G  Mad.  59  ;  Magennis  v.  Fallon,  2  Moll.  5G1. 

(y)  Causton  v.  Macklew,  2  Sim.  242. 

{w)  Butterficld  v.  Heath',  15  Beav.  408;  Buckle  v.  Mitchell,  18  Yes.  100. 


182      FRY    ON    SPECIFIC    PERFOKMANCE    OF    CONTRACTS. 

no  creditor  who  could  take  advantage  of  an  act  of  bankruptcy  committed 
by  the  vendor  ;(a;)  or  where  the  title  depended  on  the  absence  of  notice 
of  an  incumbrance,  of  which  absence  the  vendor  produced  some  evi- 
dence,(^)  or  upon  the  presumption  arising  from  mere  possession. (2) 

§  584.  The  court  will  not  allow  a  voluntary  settlor  to  force  on  a  pur- 
chaser a  title  depending  on  the  invalidity  of  the  settlement. (a)  "  One 
difficulty  in  the  way  of  assisting  him,"  said  Lord  Eldon,(&)  <'  is,  that  he 
has  no  equity  to  defeat  the  act  which  he  has  done  himself :  but  another 
consideration  which  has  weighed  in  such  cases  is,  that  if  you  compel  a 
purchaser  to  take  an  estate  at  the  instance  of  such  a  man,  you  cannot  be 
quite  sure  that  there  may  not  have  been  some  intermediate  acts,  which 
by  matter  ex  post  facto,  may  have  made  the  settlement  good  which  in  its 
origin  was  not  good." 

*§  ^^'^-  -^  question  of  no  little  nicety  arises,  where,  though 
L  "  -I  there  be  no  proof  of  fraud,  the  circumstances  of  the  title  may 
admit  of  a  suspicion  of  it,  and  where  the  hona  or  mala  fides  of  the  trans- 
action, and  its  consequent  validity,  depend  on  extrinsic  circumstances. 
In  Hartley  v.  Smith, (c)  the  title  depended  on  a  deed  of  grant  of  chattels, 
containing  a  stipulation  for  the  grantor's  continuing  conditionally  in 
possession  ;  and  Sir  John  Leach,  without  deciding  whether  such  a  deed 
was  in  itself  fraudulent  and  an  act  of  bankruptcy,  declined  to  force  the 
title  on  the  purchaser,  on  the  ground  that  its  validity  depended  on  its 
being  made  upon  good  consideration  and  hona  fide,  and  that  these  were 
circumstances,  the  existence  of  which  the  purchaser  had  no  adequate 
means  of  ascertaining.  '<  My  opinion  therefore  is,"  said  the  vice-chan- 
cellor, "  that  a  court  of  equity  ought  not  to  compel  this  purchaser  to 
accept  this  title  ;  because  assuming  the  deed  not  to  be  fraudulent  ex  facie, 
it  still  may  be  avoided  by  circumstances  extrinsic,  which  it  is  neither  in 
the  power  of  the  purchasers  or  of  this  court  to  reach. "(r?) 

§  586.  This  dictum  of  Sir  John  Leach  seems  to  allow  no  room  to  the 
presumption  of  hona  fides,  and  to  make  the  possibility  of  fraud  in  ex- 
trinsic facts  a  sufficient  objection  to  the  title  :  accordingly,  it  has  not 
been  accepted  in  all  its  generality.  It  "  must  not,"  said  Baron  Alderson, 
of  this  dictum,  '<  be  pushed  to  the  farthest  extent  which  the  words  will 
possibly  bear  '•'('')  and  accordingly,  that  judge  held  as  good  a  title  under 
a  deed  which  extrinsic  evidence  might  have  shown  to  be  invalid,  as  com- 
prising all  the  property  of  the  grantor,  or  as  made  to  give  a  fraudulent 
preference  to  some  creditors  over  others,  or  as  made  in  contemplation  of 
r*9rfn  l^^^i^i'^^ptcy,  because  there  was  no  ground  apparent  *for  making 
L  "^  -1  any  of  these  objections  to  it.(/)  In  another  case, (17)  the  vendor 
claimed  under  an  appointment  made  by  a  husband  and  wife  to  their 
eldest  daughter,  under  a  settlement  which  gave  them  successive  life 
estates,  with  remainder  to  their  children  as  they  should  appoint,  and  in 

(x)  Lowes  V.  Lush,  14  Ves.  547.  (y)  Freer  v.  Hesse,  4  De  G.  M.  &  G.  495. 

(z)  Eyton  v.  Dicken,  4  Pri.  303. 

\a)  Smith  v.  Garhind,  2  Mer.  123;  Burke  v.  Dawson,  Sag.  Vend.  592. 

(h)  In  Johnson  v.  Legiird,  T.  &  R.  294.  (c)  Buck,  Bankr.  C.  368. 

{d)  p.  380.     See  also  Boswell  v.  Mendhara,  6  Mad.  373. 

(e)  4  Y.  &  C.  Ex.  236. 

(/)  Cattell  V.  Corrall,  4  Y.  &  C.  Ex.  228.         {(/)  Green  v.  Pulsford,  2  Beav.  71. 


M'ANT    OF    A    GOOD    TITLE.  183 

default  of  appointment,  between  such  children  ;  and  the  parents  had 
encumbered  their  life  interests,  and  shortly  after  the  appointment  they 
and  their  daughter  executed  a  mortgage  :  these  were  circumstances 
which  might  create  in  every  one's  mind  a  suspicion  that  the  appoint- 
ment was  a  fraud  on  the  settlement,  and  that  was  strengthened  by  a 
notice  from  a  younger  son  to  the  purchaser  not  to  complete,  and  that 
the  appointment  was  such  a  fraud  :  but  inasmuch  as  the  notice  alleged 
no  facts,  and  gave  no  information  not  apparent  on  the  abstract,  and  was 
not  followed  up  by  any  proceedings,  the  court  considered  that  the  title 
was  not  open  to  any  sufficient  doubt,  and  forced  it  on  the  purchaser. 
And  in  an  earlier  case,  where  there  were  somewhat  similar  grounds  for 
suspecting  the  io7ia^'^es  of  an  appointment,  Lord  Eldon  pursued  the 
same  course,  and  enforced  specific  performance. (/i) 

§  587.  Again,  a  purchaser  is  not  entitled  in  the  absence  of  circum- 
stances of  suspicion  to  refuse  a  title  made  under  a  will,  because  the  will 
has  not  been  proved  against  the  heir  or  he  does  not  join  :(/)  so  that 
where  during  a  litigation  of  thirteen  years,  no  question  had  been  raised 
impeaching  the  validity  of  the  will,  and  a  person  who  had  claimed  under 
another  will  had  withdrawn  from  all  contention  against  that  first  men- 
tioned, Vice-Chancellor  Wood  compelled  the  purchaser  to  take  a  title 
under  the  will.(/i-) 

*§  588.  But  on  the  other  hand,  the  court  refused  to  compel  |-^-,„^-. 
specific  performance  in  respect  of  a  title,  which  in  absence  of  L  "  J 
special  circumstances  was  irregular,  such  circumstances  not  appearing.(/j 

§  589.  The  doubt  which  may  prevent  the  court  compelling  the  pur- 
chaser to  accept  a  title  may  be  a  doubt  either  of  law  or  of  fact  :  and,  as 
to  law,  it  may  be  connected  with  the  general  law  of  the  realm, (»i]  or 
with  the  construction  of  particular  instruments  ■,(?A  and,  as  to  fact,  it 
may  be  in  reference  to  facts  appearing  on  the  title,  or  to  facts  extrinsic 
to  it.(o)  Again,  it  may  be  about  a  matter  of  fact  which  admits  of  proof, 
but  has  not  been  satisfactorily  proved,(p)  or  about  such  a  matter  as  from 
its  nature  admits  of  no  satisfactory  proof,  as  the  negative  proposition 
that  there  was  no  creditor  of  the  vendor  capable  of  taking  advantage  of 
an  act  of  bankruptcy. (§) 


§  590.  The  grounds  of  defence  hitherto  considered  in  these  pages  are 
for  the  most  part  such  as  are  connected  with  the  contract  itself,  or  the 
circumstances  under  which  it  was  entered  into  :  those  now  to  be  consi- 
dered relate  principally  to  matters  ex  post  facto  and  subsequent  to  the 
contract. 

{h)  M'Queen  v.  Farquhar,  11  Yes.  467.  See  also  Grove  v.  Bastard,  2  Phil.  619  ; 
S.  C.  1  De  G.  M.  &  G.  69. 

(i)  Colton  V.  "Wilson,  3  P.  Wms.  190;  per  Lord  Eldon  in  Morrison  v.  Arnold, 
19  Ves.  670  ;  Weddall  v.  Nixon,  17  Beav.  160. 

{k)  M-Uulloch  V.  Gregory,  3  K.  &  J.  12.  (/)  Blacklow  v.  Laws,  2  Ha.  40. 

(m)  Sloper  v.  Fish,  2  V.  &  B.  145;  Blosse  v.  Lord  Clanmorris,  3  Bli.  62. 

(«)  Lincoln  v.  Arcedeckne,  1  Coll.  C.  C.  38  ;  Bristow  v.  Wood,  1  Coll.  C.  C.  480; 
per  Turner,  V.  C,  in  Pjrke  v.  Waddingham,  10  Ha.  9. 

(o)  Id.  (/))  Smith  v.  Death,  5  Mad.  371. 

\q)  Lowes  v.  Lush,  14  Ves.  547. 


18J:      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

[*262j  ^CHAPTER   XVIII. 

OF   FAILURE   OF   THE   CONSIDERATION. 

§  591.  It  will  be  necessary  to  inquire  under  what  circumstances, 
events  which  either  determine  the  existence  of  the  subject-matter  of  the 
contract  or  essentially  aifect  it,  will  furnish  a  defence  in  specific  perform- 
ance. Events  affecting  the  subject-matter,  but  not  essentially,  may  give 
rise  to  a  claim  for  compensation,  but  will  not  discharge  the  contract. 

§  592.  Events  happening  before  the  conclusion  of  a  contract,  and 
either  determining  the  existence  of  the  subject-matter  or  materially 
affecting  it,  may  avoid  a  contract  which,  but  for  such  events,  would  have 
been  complete  and  binding.  The  operation  of  such  events  is,  properly 
speaking,  not  to  determine  the  contract,  but  to  prevent  the  contract  ever 
arising. 

§  593.  In  one  case,^^')  the  agreement  was  for  the  sale  of  an  estate  in 
fee  in  remainder  on  an  estate  tail ;  a  conveyance  had  been  executed  and 
a  bond  given  for  payment  of  the  purchase-money,  when  it  was  discovered, 
for  the  first  time,  that  at  the  time  of  the  sale  no  such  remainder  existed, 
the  tenant  in  tail  having  previously  suffered  a  recovery :  the  court  re- 
scinded the  contract,  and  ordered  the  bond  to  be  delivered  up  and  re- 
payment to  be  made  of  all  interest  which  had  been  paid  on  it. 
r*9R^T  §  ^^'^'  ■^  contract  relating  to  a  chattel  implies,  at  law,  *the 
L  "^  -1  existenceof  the  chattel,  and  its  existence  in  the  form  or  of  the  des' 
cription  specified  in  the  contract,  and  consequently  an  event  destroying 
the  chattel  before  the  contract  is  concluded  puts  an  end  to  it.  Therefore, 
where  an  agreement  for  the  sale  of  a  life  annuity  was  concluded  in  Eng- 
land on  the  28th  of  February,  and  the  annuitant  died  in  New  South 
Wales  on  the  6th  of  the  same  month,  there  was  held  to  be  no  contract  :(6) 
and  where  a  floating  cargo  was  sold,  and  it  subsequently  appeared  that 
at  the  time  of  the  sale  the  captain  had  sold  the  cargo  abroad,  in  conse- 
quence of  the  damage  it  had  sustained  at  sea,  the  exchequer  chamber  and 
the  house  of  lords  held  the  contract  to  be  incapable  of  being  enforced. (c) 
But  as  no  warranty  is  implied  at  law  as  to  condition,  the  sale  of  a  ship 
at  sea,  which  at  the  time  happened  to  have  been  stranded,  was  binding, 
for  the  subject  of  the  contract  still  continued  a  ship.(^c?) 

§  595.  The  impossibility  of  performing  a  contract  of  which  the  sub- 
ject-matter is  extinct  would  of  course  prevent  the  interference  of  equity 
in  these  cases,  if  on  other  grounds  it  could  give  relief.(e) 

§  59G.  But  a  person  may  so  contract  as  to  preclude  himself  from 
raising  any  question  as  to  the  existence  or  determination  of  the  subject- 
matter  at  the  time  of  the  contract. (/) 

(a)  Hitchcock  v.  Giddings,  4  Pri.  135. 
(fj)  Strickland  v.  Turner,  7  Exch.  208. 

(c)  Couturier  v.  Ilastie,  8  Ex.  40,  reversed  in  Cam.  Scac.  9  Ex.  102  :  the  reversal 
affirmed  5  Ho.  Lords,  673. 

{(l)  Rarr  v.  Gibson,  3  M.  &  W.  390.  (e)  See  post,  §  058. 

(/)  Hanks  v.  Pulling,  25  L.  J.  Q.  B.  375.     See  post,  §  830. 


FAILURE    or    CONSIDERATION.  185 

§  597.  The  question  of  the  time  at  which  the  contract  has  become 
complete  arises  particularly  in  cases  of  sales  by  the  court,  because  until 
the  report  had  been  confirmed  absolute,  or  according  to  the  new  practice, 
until  eight  days  after  the  certificate  of  the  purchase  has  been  signed  by 
the  judge  in  chambers,  the  biddings  may  be  reopened.  In  these  cases, 
the  question  is  whether  the  contract  is  to  be  ^treated  as  con-  p:^9/>4-i 
eluded  by  the  sale  before  the  master,  subject  only  to  being  de-  L  "  J 
feated  by  the  opening  of  the  biddings,  in  which  case  the  confirmation 
will  relate  back  to  the  day  of  sale,  and  that  day  will  divide  events  prior 
and  events  subsequent  to  the  contract ;  or,  on  the  other  hand,  whether 
the  contract  is  to  be  considered  concluded  only  when  it  becomes  absolute 
and  indefeasible  by  the  confirmation.  In  the  case  of  Vesey  v.  Elwood,(5') 
Lord  St.  Leonards  decided  on  the  former  of  these  views,  that  the  sale 
transfers  the  property,  subject  only  to  the  risk  of  its  being  opened. 
This  was  the  view  of  Lord  Eldon  also,  in  Anson  v.  Towgood,(^)  though 
it  seems  at  variance  with  the  previous  cases(i)  before  him.  The  other 
view  is  supported  by  the  statement  of  Lord  Langdale; — "by  the  esta- 
blished rule  of  the  court,  the  purchaser  is  to  be  considered  as  the  owner 
of  the  estate  from  the  date  of  the  order  confirming  the  report  ;"(/»•)  but 
as  the  circumstance  which  in  this  case  gave  rise  to  the  question  was  not 
only  after  the  sale  but  after  the  confirmation  also,  the  case  is  probably 
not  of  the  same  weight  on  the  point  now  under  discussion,  as  if  the  cir- 
cumstances had  been  after  sale  but  before  confirmation. 

§  598.  With  regard  to  events  happening  in  the  case  of  private  con- 
tracts after  their  being  signed,  it  has  been  laid  down  that  the  question 
on  whom  the  advantage  or  loss  resulting  from  them  would  fall,  and  whe- 
ther, therefore,  the  court  would  enforce  specific  performance  without  re- 
ference to  them, — or  whether,  on  the  other  hand,  they  might  determine 
the  contract, — is  to  be  decided  by  whether  or  not  the  title  had  then 
been  actually  accepted. (^  But  the  more  *correct  doctrine  ap-  ^^ 
pears  to  be  that  the  contract  is  binding  from  signature  if  there  l  "  -J 
be  a  good  title,  though  that  may  not  be  shown  till  afterwards.  '<  It  is," 
said  Sir  Thomas  Plumer,^^)  "the  established  doctrine  of  equity,  that  if 
a  contract  to  purchase  is  to  be  completed  at  a  given  period,  and  the  title 
\s  finally  made  out,  the  parties  continuing  in  treaty,  and  the  purchaser 
not  by  any  acts  released  from  his  bargain,  the  estate  is  considered  as 
belonging  to  the  purchaser  from  the  date  of  the  contract,  and  the  money 
from  that  time  as  belonging  to  the  vendor." 

§  599.  Where  the  contract  is  in  its  inception  conditional,  the  transfer 
of  property  from  the  vendor  to  the  purchaser  takes  place  not  on  the 
conclusion  of  the  contract,  but  on  its  becoming  absolute  by  the  perform- 

{g)  3  Dr.  &  W.  74.  ^  {h)   IJ.  &  W.  637. 

(i)  Ex  parte  Minor,  11  Ves.  559,  (which  may  perhaps  be  supported  by  the  gene- 
ral power  of  the  court  in  dealing  with  such  contracts ;)  Twigg  v.  Fifield,  13  Ves 
517. 

Uc)  Robertson  v.  Skelton,  12  Beav.  260,  2G5;  cf.  Paramoro  v.  Greenslade.  1  Sm 
&  G.  541. 

{I)  Wyvill  V.  Bishop  of  Exeter,  1  Pri.  292.  295,  n.  ;  and  see  Paine  v.  Meller,  6 
Ves.  349. 

{m)  In  Harford  v.  Purrier,  1  Mad.  538. 


186      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ance  of  the  condition,  and  until  that  event  the  property  sold  remains  at 
the  risk  of  the  vendor.  This  is  well  illustrated  by  a  case(w)  which  was 
decided  by  the  judicial  committee  of  the  privy  council,  on  appeal  from 
the  Court  of  Chancery  in  Canada.  An  agreement  was  entered  into  for 
a  lease  for  five  years,  from  the  1st  of  April,  1840,  the  landlord  under- 
taking to  erect  by  that  time  a  new  warehouse  on  part  of  the  ground  to 
be  demised,  and  to  put  the  old  warehouse  in  repair,  the  amount  of  rent 
to  be  determined  with  reference  to  the  amount  expended  on  the  build- 
ings. The  new  building  was  not  completed,  nor  the  old  warehouse  re- 
paired, on  the  1st  of  April,  but  no  objection  was  made  by  the  intended 
lessees,  who  then  continued  to  occupy  part  of  the  premises  under  a  for- 
mer agreement.  Shortly  afterwards,  the  whole  premises  were  destroyed 
by  fire.  The  landlord  brought  a  bill  for  specific  performance  of  the 
agreement,  and  for  the  defendants  to  rebuild  the  premises  and  accept  a 
lease.  It  was  held,  in  the  first  place,  that  if  time  were  of  the  essence,  it 
r*9rrn  ^^^  heen  waived  by  the  defendants,  *but  that  this  did  not  waive 
L  -J  the  obligation  on  the  lessor  as  to  building,  and  that  the  defen- 
dants were  not  bound  to  accept  a  lease  till  that  was  performed;  and,  in 
the  second  place,  that,  treating  the  contract  to  take  a  lease  as  a  contract 
to  purchase,  the  warehouse  was  never  purchased  by  the  lessees  until  it 
was  completed  by  the  lessor;  and,  consequently,  that  until  that  was 
done  it  was  not  the  property  of  the  lessees,  nor  at  their  risk. 

§  GOO.  When  the  contract  has  been  completely  made,  the  thing  sold 
is  at  the  risk  of  the  purchaser,  who  must  bear  all  subsequent  losses,  and 
is  entitled  to  all  subsequent  gains  :(o)  such  events,  therefore,  cannot  de- 
termine the  contract,  (p)  , 

§  601.  Formerly  this  principle  does  not  appear  to  have  been  as  clearly 
recognized  as  it  is  at  present :  thus,  in  case  of  a  great  subsequent  advan- 
tage, Lord  Hardwicke  seems  to  have  doubted  how  far  the  court  would 
decree  specific  performance  on  the  original  terms. (j)  And  where  A. 
agreed  to  sell  his  estate  for  an  annuity  during  his  life  :  the  time  appointed 
for  conveyance  was  the  olst  of  October,  but  the  annuity  was  to  com- 
mence from  the  5th  of  April  previous,  and  to  be  paid  half-yearly :  the 
half-year's  payment,  due  on  the  5th  of  October,  was  not  paid  or  ten- 
dered, and  on  the  12th  of  November,  A.  died  from  an  accident;  Lord 
Bathurst  and  the  house  of  lords  dismissed  a  bill  for  specific  perform- 
ance, (r)  Lord  St.  Leonards(.s')  attributes  this  decision  to  the  neglect  to 
make  or  tender  the  payment ;  but  it  does  not  seem  clear  that  the  case 
was  not  considered  by  the  judges  who  decided  it  as  one  of  inadequate 
consideration,  and  treated  as  a  case  of  hardship. 

§  602.  The  principle  as  now  established  is  illustrated  by  *nu- 
L  "^  J  merous  cases.  Thus,  where  money  was  left  to  be  laid  out  in 
land  to  be  settled  to  the  use  of  A.  in  tail,  remainder  to  B.  in  fee,  and 
A.  and  B.  agreed  to  divide  the  money,  and  before  the  agreement  had 

(n)  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.  83. 

(o)  Instit.  1.  iii.  tit.  24,  sec.  3  ;  Pothier,  Tr.  du  Contrat  de  Veute,  part  iv. 

(p)  Per  Lord  Manners  in  Revell  v.  Hussey,  2  Ball  &  B.  287. 

(</)  Davy  V.  Barber,  2  Atky.  489.     See  also  Stent  v.  Bailis,  2  P.  Wms.  217. 

(r)  Pope  V.  Roots,  1  Bro.  P.  C.  370.  (s)  Vend.  244. 


FAILURE    OF    CONSIDERATION.  187 

been  carried  into  execution  A.  died  without  issue,  the  agreement  was 
nevertlieless  specifically  performed. {/)  So  an  agreement  to  sell  for  an 
annuity  will  not  be  avoided  by  the  death  of  the  annuitant,  even  before 
any  payment. (?()  So  where,  subsequently  to  the  contract,  houses  were 
burnt  down,  the  loss  fell  on  the  purchaser. (?;)  And,  again,  where  a 
trader  agreed  to  take  two  persons  into  partnership  for  a  period  of  eigh- 
teen years,  in  consideration  of  a  sum  to  be  paid  by  instalments,  and 
before  they  were  all  paid  he  became  a  bankrupt,  the  assignees  were  held 
entitled  to  the  remaining  instalments. (if) 

§  60-3.  Where  an  agreement,  capable  of  being  specifically  executed  at 
the  time  of  the  filing  of  the  bill,  has  by  lapse  of  time  between  that  and 
the  hearing  become  incapable  of  execution  in  the  ordinary  way,  so  as  to 
confer  future  benefits,  the  question  arises,  what  course  ought  to  be  pursued. 
This  question  came  before  Sir  Thomas  Plumer  in  Ncsbitt  v.  Meyer,ra;) 
where  a  bill  was  filed  before  the  term  expired  for  a  specific  performance 
of  an  agreement  to  accept  a  lease,  but,  without  fault  on  either  side,  the 
term  expired  before  the  hearing.  The  case  was  decided  upon  another 
point,  but  the  master  of  the  rolls  evidently  inclined  to  the  opinion,  that 
the  court  would  not  decree  the  execution  of  a  formal  lease  after  the 
expiration  of  the  term.  In  accordance  with  this  view.  Lord  Cranworth, 
approving  the  judgment  of  Vice  Chancellor  Wood,  has  expressed  |-^^_„^ 
*the  opinion  that  it  would  require  very  special  circumstances  in-  L  ^  J 
deed  to  induce  the  court  to  decree  specific  performance  of  a  lease  after 
the  expiration  of  the  term.^y"!  "  AVhat  the  court,"  said  his  lordship, (s) 
really  would  be  decreeing  in  such  case  would  not  be  the  specific  perform- 
ance for  an  agreement  for  a  lease,  but  merely  that  the  lessee  should  make 
himself  a  specialty  debtor  in  respect  of  past  benefits  received."  It  is, 
however,  to  be  remarked,  that  the  circumstances  of  the  case  before  Sir 
Thomas  Plumer  and  before  his  lordship  were  different,  inasmuch  as  in 
the  former  the  delay  seems  entirely  due  to  the  court ;  whereas  in  the  latter 
no  steps  were  taken  until  just  before  the  expiration  of  the  term,  so  that 
it  was  impossible  for  the  plaintiff  to  obtain  a  decree  until  the  term  was 
at  an  end. 

§  604.  On  the  other  hand,  the  opinion  of  13aron  Alderson  was  some- 
what at  variance  with  the  doctrine  above  stated.  "  The  moment  the 
bill  is  filed,"  said  his  lordship,(a)  "  the  rights  of  the  parties  remain  fixed, 
or  ought  so  to  do.  I  cannot  accede  to  the  doctrine  in  Nesbitt  v.  Meyer. 
How  can  the  constitution  of  the  court  alter  the  rights  of  the  parties  r' 
The  decision  in  the  case  in  the  exchequer  seems,  however,  reconcilable 
with  those  before  stated ;  for  the  prayer  of  the  bill  was  for  the  specific 

(t)  Ciirlcr  V.  Carter,  Forrest,  271. 

lu)  Mortimer  v.  Capper,  1  Bro.  C.  C.  15G  ;  Jackson  v.  Lever,  3  Bro.  C.  G.  GOo. 

(r)  Paiue  v.  Meller,  6  Ves.  349.  In  Cass  v.  Ruddle,  2  Vern.  280,  the  earthquake 
which  destro3'ed  the  houses  appears  to  have  taken  place  after  the  contract  had 
been  carried  into  effect.     See  Rathly's  n.  on  the  case,  and  1  Bro.  C.  C.  156,  n. 

(if)  Akliurst  V.  Jackson,  1  Sw.  85.  See  also  per  Lord  Eldon  in  Coles  v.  Treco- 
thick,  9  Ves.  246. 

(z)   1  Sw.  223. 

(y)  Walters  v.  Northern  Coal  Mining  Company,  5  De  G.  M.  &  G.  629. 

(z)  p.  639.     See  also  Iloyle  v.  Livesey,  1  Mer.  381. 

(a)  Wilkinson  v.  Torkington,  2  Y.  &  C.  Ex.  726,  728. 


188       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

performance  of  an  agreement  for  a  lease,  and  for  an  account  of  arrears  of 
rent  on  the  footing  of  the  agreement,  and  it  was  held  that  although  by 
the  expiration  of  the  term  before  the  hearing  the  specific  performance 
could  not  be  granted,  yet  that  the  plaintiff  was  entitled  to  a  decree  for  an 
account. 

§  605.  And  similarly,  in  a  previous  case(6)  before  Sir  John  Leach,  he 
held  that  a  bill  might  be  maintained  by  a  purchaser  for  the  specific  per- 
formance of  an  agreement  for  a  life  annuity,  although  the  annuitant  had 
r*orQi  ^'^^^  °°^  ^^^^  *before  the  hearing,  but  before  the  bill  was  filed, 
L  *^  J  where  there  were  arrears  of  the  annuity  between  the  time  of  the 
purchase  and  the  death  of  the  annuitant,  to  which  the  purchaser  had  an 
equitable  title  under  the  contract:  but  his  honor  said  that  it  might  be  a 
question  whether  such  a  bill  could  be  maintained  if  the  death  of  the 
annuitant  were  to  happen  so  that  the  purchaser  took  no  benefit  under  his 
contract,  as  might  happen  where  his  title  was  to  commence  at  a  future 
time. 

§  606.  These  cases,  it  must  be  confessed,  leave  the  exact  state  of  the 
law  on  this  point  somewhat  difficult  to  state.  It  is,  however,  submitted 
that  the  rule  to  be  collected  from  them  is  to  the  effect,  that  where  a  bill 
for  specific  performance  is  filed  after  the  expiration  of  the  interest,  or  so 
shortly  before  its  expiration,  as  that  according  to  the  ordinary  course  of 
the  court  a  decree  cannot  be  made  till  after  it  shall  have  determined,  the 
bill  will  be  dismissed ;  but  that  where  the  plaintiff  is  at  the  filing  of  the 
bill  entitled  to  specific  performance,  and  the  delay  which  causes  the  ex- 
piration of  the  interest  before  the  hearing  is  due  entirely  to  the  consti- 
tution of  the  court,  the  plaintiff  will  be  entitled  to  an  account,  or  other 
equitable  relief  to  which  he  may  show  a  right,  and  perhaps  to  the  execu- 
tion of  a  legal  instrument,  where  that  would  confer  on  him  important 
legal  rights  to  which  he  was  entitled  at  the  filing  of  the  bill. 

§  607.  In  case  of  an  agreement,  legal  at  the  time  it  was  entered  into, 
but  subsequently  and  before  decree  rendered  illegal  by  statute,  it  would 
seem  to  be  clear  on  principle  that  no  specific  performance  could  be  granted 
except  in  cases  where  the  court  can  still  execute  the  contract  cypres  :{c) 
a  contract  thus  rendered  illegal  would  in  the  contemplation  of  the  court 
have  become  impossible. (fZ) 


[*270]  ^CHAPTER    XIX. 

OF  DEFAULT  ON  THE  PART  OP  THE  PLAINTIFF, 

§  608.  With  regard  to  the  matters  to  be  done  by  the  plaintiff  accord- 
ing to  the  terms  of  the  contract,  it  is,  from  obvious  principles  of  justice, 

(M  Kenney  v.  We.xham,  6  Mak.  355.     See  Strickland  r.  Turner,  7  Ex.  208. 

(c)  See  post,  g  G67  et  seq. 

\d)  Atkinson  v.  Ritchie,  10  East,  530,  534 ;  Barker  v.  Hodgson,  3  M.  &  S.  267 ; 
Esposito  V.  Bowdcn,  4  Ell.  &  Bl.  963.  Sec  alsoWinnington  v.  Briscoe,  8  Mod.  51, 
and  ante,  ^  307. 


DEFAULT    OF    PLAINTIFF.  189 

incumbent  on  hira,  when  he  seeks  the  performance  of  the  contract,  to 
show,  first  that  he  has  performed,  or  been  ready  and  willing  to  perform, 
all  essential(a)  terms  of  the  contract  on  his  part  to  be  then  performed ; 
and  secondly,  that  he  is  ready  and  willing  to  do  all  matters  and  things 
on  his  part  thereafter  to  be  done  ;  and  a  default  on  his  part  in  either  of 
these  respects  furnishes  a  ground  upon  which  the  suit  may  be  resisted. ^Z/) 

§  GOO.  We  will  first  consider  cases  of  default  in  respect  of  acts  which 
ought  to  have  been  already  done. 

§  GIO.  The  performance  to  be  shown  by  the  plaintiff  extends  not 
only  to  the  terms  of  the  contract  itself,  but  to  representations  made  at 
the  time  of  the  contract  of  future  acts,  on  the  faith  of  which  the  con- 
tract was  made.(c)  Thus  where  a  vendor  at  a  sale  represented  that  he 
would  make  improvements  in  the  access  to  the  property  sold,  and  failed 
to  do  so,  the  court  refused  specifically  to  perform  his  contract  ;(<:?)  and 
again,  the  same  was  the  decision  of  the  court  in  a  case  where  the  vendor, 
by  his  agent,  represented  that  a  *church  should  be  erected  in  the  r^.^yi-i 
immediate  neighbourhood  of  the  building  ground  which  was  the  '-  "  -I 
subject  of  the  contract,  and  that  he  would  complete  certain  streets,  and 
the  purchase  was  made  on  the  faith  of  these  representations,  which  the 
plaintiff  however  never  carried  into  effect. (c) 

§  611.  V>e  may  here  briefly  inquire  into  how  far  maps  or  plans  of  the 
property,  exhibited  by  the  vendor  at  the  time  of  entering  into  the 
agreement,  form  representations  of  the  kind  we  are  now  considering. 

§  612.  Where  the  parties  have  matured  their  agreement  into  a  con- 
tract, and  that  contract  is  silent  on  the  subject  of  such  map  or  plan, 
the  court  will  not  from  such  exhibition  infer  a  contract.  (/)  This 
applies  alike  to  private  contracts  and  to  special  acts  of  parliament,  so 
that  notices  given,  and  plans  and  sections  deposited,  are  not  to  be  used 
in  construing  an  act  afterwards,  except  so  far  as  they  are  referred  to, 
and  thus  incorporated  in  the  act  of  parliament  itself  (^) 

§  613.  Where  the  map  thus  exhibited  delineates  the  intended  division 
of  the  property  by  new  roads,  the  vendor  may  not  afterwards  divide  the 
land  in  a  manner  so  different  as  to  attract  a  population  entirely  diflerent 
from  that  which  would  have  been  produced  by  the  carrying  out  of  the 
plan  proposed  by  the  roap.^/i) 

§  614.  But  though  the  exhibition  of  a  map  may  bind  to  this  extent, 
it  will  not  oblige  to  an  exact  performance  of  the  scheme  it  embodies. 
Thus  where  a  plan  was  referred  to  in  the  contract,  and  used  as  a  descrip- 
tion of  the  part  of  the  property  in  question,  and  on  this  plan  the  measure- 
ment and  width  of  the  street  were  marked,  but  there  was  *nothing  p^o-Q-i 
in  the  agreement  which  distinctly  pointed  out  that  part  of  the  L  ^ '  "J 

(a)  2  Eq.  Cas.  Abr.  33.  (b)  See  post,  g  G16. 

(c)  As  to  what  representations  will  in  equity  be  considered  as  part  of  the  con- 
tract, see  the  chapter  on  Misrepresentation,  ante,  §  425  et  seq. 

(d)  Beaumont  v.  Dukes,  Jac.  422.  (e)  Myers  v.  "Watson,  1  Sim.  \.  S.  523. 
(/)  Feoffees  of  Heriot's  Hospital  v.  Gibson,  2  Dow,  301 ;  Squire  v.  Campbell,  1 

My.  &  Cr.  459. 

(ff)  North  British  Railway  Company  v.  Tod,  12  CI.  &  Fin.  722;  Beardmer  v. 
London  and  North-western  Railway  Company,  1  M'N.  &  G.  112. 

(ft)  Peacock  v.  Penson,  11  Beav.  355,  361. 

November,  1858. — 13 


190       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

plan  as  binding  the  parties  to  the  agreement,  the  master  of  the  rolls  held 
that  it  did  not  form  part  of  the  agreement,  so  as  to  entitle  one  party  to 
relief  against  an  encroachment  on  the  width  of  the  street. (;')  In  another 
case  the  particulars  referred  generally  to  an  accompanying  plan,  and  on 
the  plan  several  roads  were  marked  out  so  as  to  provide  frontages  for  all 
the  lots,  and  the  lines  of  roads  were  marked  out  on  the  land  itself  in 
accordance  with  the  plan  :  Sir  J.  L.  K.  Bruce,  then  vice-chancellor, 
held  that  in  the  absence  of  any  clause  in  the  particulars  or  conditions  of 
sale  providing  for  any  rights  of  way  beyond  a  road  leading  into  the 
nearest  highway,  such  road  was  all  that  the  purchaser  was  entitled  to. (A-) 

§  615.  Where  the  sale  plan,  instead  of,  as  in  the  previous  cases,  re- 
presenting an  intended  and  future  state  of  the  property,  accurately  re- 
presents it  in  its  actual  and  present  state,  it  has  been  held  that  it  will 
not  carry  the  case  higher  than  a  view  of  the  property.  Therefore  where 
a  plan  represented  a  well  on  lot  4  communicating  with  a  reservoir  on  lot 
2,  and  that  communicating  with  the  inn  which  was  the  lot  1  which  the 
plaintiff  purchased,  and  the  vendor  conveyed  lots  2  and  4  without  any 
reservation  to  the  plaintiff  of  a  right  to  a  flow  of  water  from  the  well, 
the  plaintiff's  demand  for  compensation  for  the  loss  of  the  water  was  re- 
fused.(A  Lord  St.  Leonards,  however,  considers  this  case  as  open  to 
observation. (?>i) 

§  616.  In  the  averment  of  performance  by  the  plaintiff,  equity,  as 
already  stated,  discriminates  between  the  essential  and  the  non-essential 
terms  of  a  contract ;  and  to  furnish  the  defendant  with  a  ground  for  re- 
sistino-  the  bill,  the  non-performance  of  the  plaintiff  must  be  of  a  term 
r*97QT  ittipoi"t^°*  *iind  considerable.  The  court  frequently  interferes  at 
L  "*  -I  the  instance  of  a  party  who  may  be  debarred  from  relief  at  law, 
because  unable  to  allege  performance  in  the  very  terms  of  the  contract, 
which  is  essential  at  law.(?«)  Thus,  for  example,  where  A.  contracted 
to  sell  property  to  B.,  and  by  the  same  agreement  it  was  also  stipulated 
that  A.  should  continue  tenant  from  year  to  year  of  the  land,  and  it 
happened  that  from  embarrassed  circumstances  he  was  unable  to  fill  the 
tenancy,  this  was,  from  the  determinable  nature  of  the  holding,  held  to 
be  a  matter  of  no  consideration,  and  so  not  a  bar  to  specific  performance 
of  the  contract  for  sale.(o)  And  all  the  cases  in  which  the  court  grants 
a  vendor  asking  for  specific  performance  indulgence  in  the  making  out 
of  his  title,(p)  or  allows  him  to  enforce  the  contract  with  compensation,(g') 
are,  of  course,  illustrative  of  the  principle  now  before  us. 

§  617.  Where  that,  on  the  non-performance  of  which  by  the  plaintiff 
the  defendant  relies,  is  in  its  nature  a  collateral  and  separate  contract, 
or  is  part  of  or  referable  to  such  a  contract,  though  between  the  same 
parties  and  entered  into  at  the  same  time,  and  having  relation  to  the 
same  subject-matter  as  the  contract  which  the  plaintiff  seeks  to  enforce, 
the  court  will  not  consider  the  default  by  the  plaintiff  in  respect  of  the 

(i)  Nurse  v.  Lord  Seymour,  13  Beav.  254. 

(k)  Randall  v.  Hall,  4  De  G.  &  Sm.  343. 

(/)  Fewster  v.  Turner,  11  L.  J.  Ch.  161.  (m)  Vend.  20. 

(n)  See  per  Lord  Redesdale  in  Davis  v.  Hone,  2  Sch.  &  Lef.  347;  ante,  |  4. 

(o)  Lord  V.  Stephens,  1  Y.  &  0.  Ex.  222.  {]>)  See  post,  §  871  et  seq. 

(q)  See  post,  ^  791  et  seq. 


DEFAULT    OF    PLAINTIFF.  191 

one  contract  as  any  bar  to  the  specific  performance  of  the  other,  though 
such  default  may  give  him  a  cross  right  of  action  or  suit.(/')  Thus  where 
A.  agreed  with  B.,  the  owner  of  a  plot  of  land,  to  erect  a  villa  on  it,  and 
to  keep  it  insured  in  the  joint  names  of  A.  and  B.,  in  the  county  fire 
oflice,  and  B.  agreed  as  soon  as  the  house  should  be  completed,  to  grant 
a  lease  of  the  plot  to  A.,  and  that  if  A.  should  not  perform  his  part,  the 
agreement  for  the  lease  should  be  void ;  and  the  agreement  also  stipulated 
that  A.  *should  have  the  option  of  purchasing  the  fee  within  r^^'-i-i 
two  years  :  A.  erected  the  villa,  but  insured  in  a  wrong  ofiice,  L  "^  J 
and  in  his  own  name  alone ;  and  then  brought  his  bill  for  a  sale  under 
the  option  to  purchase,  and  it  was  held  by  the  master  of  the  rolls  that 
this  option  was  independent  of  the  right  to  a  lease,  and  that  notwith- 
standing the  plaintiff's  default  in  respect  of  the  latter  right,  the  former 
subsisted,  and  he  accordingly  decreed  a  specific  performance. (s) 

§  618.  And  so,  where  in  a  deed  for  the  dissolution  of  partnership, 
one  partner  assigned  to  another  certain  foreign  shares,  and  covenanted 
for  further  assurance ;  and  the  other  partner  covenanted  with  the  former 
for  indemnity  against  certain  liabilities  :  a  further  assurance  of  the 
shares  became  necessary,  and  on  a  bill  filed  to  enforce  specific  perform- 
ance of  the  covenant  to  that  effect,  it  was  held  by  the  lords  justices,  over- 
ruling the  master  of  the  rolls,  that  a  breach  of  the  covenant  to  indemnify 
which  the  plaintiff  had  entered  into  with  the  defendant  was  no  defence 
to  the  suit.  The  two  covenants  were  independent,  so  that  the  perform- 
ance of  the  one  was  not  to  be  resisted  by  reason  of  the  non-performance 
of  the  other.  (^) 

§  619.  Actual  performance  may  in  some  cases  be  excused,  and  readi- 
ness and  willingness  to  perform  be  enough.  "Where  the  facts  stated  in 
the  bill,  or  appearing  on  evidence,  show  that  a  tender  of  performance  by 
the  plaintiff  would  have  been  refused,  that  renders  such  tender  unne- 
cessary. (i<)  And  still  more  clearly,  if  possible,  is  non-performance  by 
the  plaintiff  excused  when  that  has  resulted  from  the  neglect  or  default 
of  the  defendant. (i") 

§  620.  With  regard  to  infancy,  an  infant  heir  cannot  *avail  p^.->„.-. 
himself  of  his  disability  to  excuse  the  non-assertion  of  his  right  L  ~ '  J 
under  an  executor)-  contract  made  with  his  ancestor,  when  the  immediate 
performance  of  his  part  of  the  contract  is  essential  to  the  interest  of  the 
other  party  ;  as,  for  example,  of  an  agreement  to  lay  out  money  in  build- 
ing within  three  years. (?(•) 

§  621.  "We  shall  now  consider  how  far  the  impossibility  of  performing 
the  plaintiff's  part  furnishes  an  excuse  for  non-performance.  (1)  In  those 
cases  in  which  all  that  was  to  have  been  performed  by  the  plaintiff  has 
become  entirely  incapable  of  being  executed,  the  plaintiff  cannot  demand 

(r)  Phipps  V.  Child,  3  Drew,  709.  («)  Green  v.  Low,  22  Beav.  625. 

(t)  Gibson  v.  Goldsmid,  5  De  G.  M.  &  G.  757;  S.  C.  18  Beav.  584. 

(m)  Hunter  v.  Daniel,  4  Ha.  420;  per  Lord  EUenborough,  in  Seaward  v.  Wil- 
lock,  5  East,  202  ;  Poole  v.  Hill,  6  M.  &  W.  835 ;  Wilmot  v.  Wilkinson,  6  B.  &  C. 
506.     See  also  Lovelock  v.  Frankljn,  8  Q.  B.  371 ;  Doogood  v.  Rose,  9  C.  B.  131. 

(v)  Hotham  v.  East  India  Companr.  1  T.  R.  G38. 

(tt-)  Griffin  V.  Griffin,  1  Sch.  &  Lcf!  ?,:,2. 


192      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

tlie  performance  by  the  other  party,  because  his  non-performance  is  a 
total  failure  of  the  consideration  which  was  to  have  moved  from  him. 

§  622.  (2)  But  where  the  impossibility  refers  not  to  the  substantial, 
but  only  to  the  exact  and  literal  performance  of  the  contract,  the  court 
will  struggle  with  matters  of  form  in  order  to  do  complete  justice  between 
the  parties ;  but  it  will  carefully  avoid  going  so  far  as  to  make  a  new  con- 
tract between  them.(.r^     Hence  arise  the  cases  on  compensation. (y) 

§  623.  (3)  In  those  cases  in  which  the  plaintiff  has  performed  a  sub- 
stantial part  of  his  contract,  and  then  the  remaining  part  has  become 
impossible  by  reason  of  circumstances  not  dependent  upon  him  and  with- 
out his  fault,  a  distinction  has  been  drawn  between  those  cases  in  which 
the  plaintiff  is  in  statu  quo  as  to  that  part  of  the  contract  which  he  has 
performed,  and  those  cases  in  which  he  is  not  in  statu  quo  ;  equity  refus- 
ing to  enforce  performance  of  the  contracts  by  the  other  party  in  the 
former  case,  and  enforcing  it  in  the  latter.  This  distinction  rests  almost 
entirely  on  the  authority  of  Lord  Chief  Baron  Gilbert,  in  a  passage  in 
r*97n  ^^^  '  ^^^  Pr£etoria,'(2;)  but  has  been  approved  by  subsequent 
L  "^  J  *writers(a)  and  seems  agreeable  to  the  principles  of  justice. 
"Here,"  says  his  lordship  in  the  passage  in  question,  "it  is  to  be 
noted  that  the  plaintiff  that  exhibited  his  bill  upon  the  foot  of  perform- 
ing the  bargain  on  his  part,  ought  to  show  that  he  has  performed  all  that 
is  to  be  done  on  his  part,  or  is  ready  to  do  it ;  for  where  any  part  (which 
he  should  have  performed)  is  become  impossible  to  be  performed  at  the 
time  of  exhibiting  his  bill,  then  he  can  have  no  specific  execution,  be- 
cause he  cannot  specifically  execute  on  his  own  part :  as  in  the  case  of 
my  Lord  Feversham,  which  was  on  a  marriage  agreement,  whereby  he 
contracted  to  settle  the  manor  of  Holmly  on  his  wife  and  the  heirs  of 
their  bodies,  and  clear  it  of  incumbrances,  and  settle  a  separate  mainte- 
nance on  his  wife,  and  likewise  sell  some  pensions  in  order  to  make  a 
further  provision  for  his  wife  and  the  issue  of  that  marriage;  and  Sir 
George  Sandys,  the  father-in-law,  agreed  to  settle  £3000  per  annum  on 
the  Lord  Feversham  for  life,  remainder  to  the  wife  for  life,  and  so  to  the 
issue  of  the  marriage.  Lord  Feversham  cleared  the  3Ianor  of  Holmly, 
settled  it  accordingly,  and  settled  the  separate  maintenance,  but  did  not 
sell  the  pensions,  nor  settle  the  further  provisions :  the  wife  died  with- 
out issue,  and  the  Lord  Feversham  preferred  his  bill  to  have  the  £3000 
per  annum  settled  on  him  during  his  life  :  but  decreed  because  Lord 
Feversham  was  in  statu  quo  as  to  all  that  part  of  the  agreement  which  he 
had  performed  and,  having  not  performed  the  whole,  and  the  other  parts 
being  now  impossible,  and  no  compensation  being  possible  to  be  adjusted 
for  it,  he  had  no  title  in  equity  to  have  performance  of  Sir  George's  part 
of  the  agreement,  since  such  performance  could  not  be  mutual.  But 
the  issue  of  Lord  Feversham  might  have  been  relieved,  because  in  no  de- 
fault. Lord  Feversham  v.  Watson,  Bcp.  t.  Finch,  445,  2  Freem.  35, 
Skin.  287. 

(z)  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.  83,  108. 
y)  See  post,  §  vol  et  seq.  (z)  pp.  240-242. 

a)  1  Fonbl.  Eq.  Book  i.  c.  6,  s.  3 ;  Story,  Eq.  Jur.  s.  772. 


DEFAULT    OF    PLAINTIFF.  193 

*§  624.  "But  if  a  man  has  performed  so  mucli  of  Lis  part  of  r-^9~--i 
the  agreement  as  he  is  not  in  statu  quo,  and  is  in  no  default  for  L  "^  J 
not  performing  the  residue,  then  he  shall  have  a  specific  execution  from 
the  other  party  of  the  agreement :  as  if  a  man  has  contracted  for  a  por- 
tion with  his  wife,  and  lias  agreed  to  settle  upon  the  wife  and  her  issue, 
lands  of  such  a  value  free  from  incumbrances,  and  he  sells  part  of  his  land 
to  disencumber  and  is  going  on  to  disencumber  and  settle  the  rest :  then 
if  the  wife  dies  without  issue  before  the  settlement  be  actually  made,  yet 
he  shall  have  a  portion,  because  he  cannot  be  in  statu  quo,  having  sold 
part  of  his  lands,  and  there  is  no  default  in  him,  since  he  was  going  on  to 
disencumber  and  settle  the  rest ;  therefore  the  accident  of  the  death  of  his 
wife  doth  not  alter  his  right  to  his  wife's  portion.  Meredith  v.  Wynn, 
Eq.  Abr.  70,  p.  15;  Gilb-Eq.  Kep.  70;  Prec.  Ch.  312;  2  Yern.  448." 

§  025.  In  respect  of  marriage  contracts,  an  exception  to  the  general 
principle  before  us  exists,  for  the  obvious  reason  that  the  parties  to  the 
contract  are  not  the  only  parties  having  an  interest  in  the  subject,  but 
the  contract  is  made  by  them  on  behalf  of  the  issue  of  the  marriage  ;(i) 
and  it  is  evident  that  though  A.'s  default  may  bar  his  suing  B.,  A.'s  de- 
fault cannot  bar  C.'s  rights  against  B.  "  There  is,"  said  Lord  Hard- 
wicke,(f )  "  a  difi'erence  between  agreements  on  marriage  being  carried 
into  execution  and  other  agreements;  for  all  agreements  besides  are 
considered  as  entire,  and  if  either  of  the  parties  fail  in  performance  of 
the  agreement  in  part,  it  cannot  be  decreed  in  specie,  but  must  be  left 
to  an  action  at  law  :  in  marriage  agreements  it  is  otherwise,  for  though 
either  the  relations  of  the  husband  or  wife  should  fail  in  the  performance 
of  their  part,  yet  the  children  may  compel  a  performance  :  if  the  mother's 
father,  for  instance,  hath  agreed  to  give  a  portion,  *and  the  bus-  p*9-Q-i 
band's  father  hath  agreed  to  make  a  settlement,  though  the  mo-  *-  "^  -■ 
ther's  father  do  not  give  the  portion,  yet  the  children  may  compel  a  settle- 
ment, for  non-performance  on  one  part  shall  be  no  impediment  to  the 
children's  receiving  the  full  benefit  of  the  settlement ;  so  if  there  be  a 
failure  on  the  part  of  the  father's  relations,  it  is  the  same."  The  same 
principle  was  acted  on  by  the  same  judge  in  another  case,(r7)  where  the 
heirs  of  the  husband  were  compelled  to  settle  the  jointure,  though  the 
husband  had  never  received  the  portion  which  the  wife's  father  contract- 
ed to  pay;  and  the  doctrine  has  been  acted  upon  and  upheld  in  numer- 
ous other  cases  both  of  early  and  late  date.(f) 

§  G2G.  This  exception  with  regard  to  marriage  contract  applies,  how- 
ever, only  under  certain  limitations.  For  (1)  it  is  unquestionable  that 
even  in  marriage  articles  the  covenants  may  be  so  framed  as  to  be  mutu- 
ally dependent,  and  this  intention,  if  clearly  expressed,  will  prevail. (/) 

§  G27.  (2)  The  defaulting  party  himself  or  those  claiming  under  him 

(6)  Per  Lord  Cottenham  in  Lloyd  v.  Lloyd,  2  My.  &  Cr.  204. 

(c)  In  Harvy  v.  Ashley,  3  Atky."  611.  (rf)  Perkins  v.  Thornton,  Ambl.  502. 

(e)  Hancock  v.  Hancock,  2  Vern.  605 ;  North  v.  Ansell,  2  P.  Wms.  618 ;  Pyke  v. 
Pyke,  1  Yes.  Sen.  376;  Ramsdcn  v.  Ilylton,  2  Yes.  Sen.  304;  Lloyd  v.  Lloyd,  2 
My.  &  Cr.  192  ;  Campbell  v.  Ingilby,  21  Bcav.  567  ;  S.  C.  2G  L.  J.  Ch.  654.  (L.JJ.) 
In  Cubiit  V.  Blake,  19  Beav.  454,  the  settlement  was  post-nuptial,  and  the  ques- 
tion of  the  rights  of  the  issue  was  not  raised. 

(/)  Lloyd  V.  Lloyd,  2  My.  &  Cr.  192,  204. 


194      FRY    ON    SPECIFIC    PERFORM  AX  CE    OF    CONTRACTS. 

as  assignees  cannot  gain  the  advantage  of  the  contract  of  the  other 
party. (^)  If  a  woman  were  on  her  part  to  contract  for  the  settlement  of 
an  estate  which  would  give  a  benefit  to  the  husband,  and  the  husband 
were  to  contract  for  the  benefit,  and  the  wife  made  default  on  her  part, 
"  that,"  said  Lord  Kedesdale,(/i)  "  might  be  a  case  in  which  the  wife 
should  not  be  allowed  to  have  the  benefit  of  the  husband's  contract :  but 
that  would  not  affect  the  children, — they  must  have  the  estate." 


* 


r*v>'-Q1  §  ^■^^-  (^)  W^isre  the  marriage  settlement,  by  reason  of  the 
L  ■"  -J  course  of  events,  fails  with  respect  to  the  acts  to  be  done  by 
the  wife,  collaterals  who  are  not  within  the  scope  of  the  marriage  con- 
tract cannot  enforce  upon  the  husband  the  performance  of  the  acts  con- 
tracted to  be  done  by  him.  This  appears  to  have  been  decided  in  the 
case  of  Savill  v.  Savill,(i)  where  the  husband  on  marriage  settled  the 
personal  property  of  the  wife  upon  his  wife  and  himself  and  their  chil- 
dren, with  a  remainder  to  her  next  of  kin,  and  covenanted  that  upon  his 
wife's  coming  of  age  her  real  estate  should  be  similarly  settled,  but  with 
the  ultimate  remainder  to  her  heirs  :  the  wife  attained  her  majority,  and 
about  a  month  afterwards  died  without  issue  and  without  having  settled 
the  real  estates,  leaving  her  sister  her  sole  heiress  and  next  of  kin  ;  and 
it  was  held  that  this  sister  could  not  compel  a  conveyance  to  herself  of 
the  real  estate,  without  making  compensation  to  the  husband  out  of  the 
personal  estate  for  the  loss  of  the  real  estate,  which  ho  would  have  taken 
under  the  settlement  had  it  been  executed  by  his  wife. 

§  629.  The  doctrine  of  compensation  would  not  apply  to  appointees  of 
the  wife,  who  are  regarded  as  purchasers  under  the  settlement. (/i;) 


§  630.  "We  may  now  consider  the  obligation  which  lies  on  the  plaintiiF, 
in  a  suit  for  specific  performance,  of  being  ready  and  willing  to  perform 
all  acts  that,  on  his  part,  yet  remain  to  be  performed. 

§  631.  On  the  ground  of  this  obligation,  assignees  in  bankruptcy  are 
not  able  as  plaintifis  to  enforce  a  contract  entered  into  by  the  bankrupt, 
which  would  have  involved  covenants  on  his  part,  unless  they  will  per- 
sonally enter  into  the  covenants  into  which  the  bankrupt  would  have 
r*9Sm  *^°t6red  :(Z)  whereas  in  the  converse  case,  where  specific  per- 
L  J  formance  is  sought  not  by,  but  against  persons  having  a  fiduciary 
interest  only,  they  are  bound  to  covenant  only  so  as  to  bind  the  property 
and  not  themselves  personally. (??i) 

§  632.  And  so  of  bankruptcy  :  if  the  plaintifi"  be  the  vendor,  the  com- 

(ff)  Mitford  V.  Mitford,  9  Ves.  87,  96  ;  Basevi  v.  Serra,  14  Ves.  313. 

(h)  In  Crofton  v.  Ormsby,  2  Sch.  &  Lef.  G02,  603. 

(?)  2  Coll.  C.  C.  721  ;  per  M.  R.  in  Campbell  v.  Ingilby,  21  Beav.  579. 

(k)  Campbell  v.  Ingilby,  21  Beav.  567,  affirmed  on  the  ground  of  the  negligence 
of  the  plaintiff,  26  L.  J.  Ch.  654,  (L.JJ.) 

(l)  Ex  parte  Sutton,  2  Rose,  86;  Williugham  v.  Joyce,  3  Ves.  168;  Powell  v. 
Lloyd,  2  Y.  &  J.  372  ;  per  Sir  Wm.  Grant  in  Weatherall  v.  Geering,  12  Ves.  513. 

(m)  Page  v.  Broom,  3  Beav.  836;  Phillips  v.  Everard,  5  Sim.  102  ;  Stephens  v. 
llotham,  1  K.  &  J.  571  ;  and  see  further  as  to  covenants  by  trustees,  Worley  v. 
Frampton,  5  Ha.  560;  Onslow  v.  Lord  Londesborough,  10  Ila.  67  ;  Copper  Mining 
Company  v.  Beach,  13  Beav.  478;  Hodges  v.  Blagrave,  18  Beav.  404;  Hare  v. 
Burges,  4  K.  &  J.  45. 


DEFAULT    OF    PLAINTIFF.  195 

mission  of  an  act  of  bankruptcy,  though  without  proof  of  the  existence 
of  any  debt  to  support  a  petition  is  a  bar  to  a  suit  for  specific  perform- 
ance, because  the  plaintiff"  may  be  incapable  of  conveying  the  estate, 
which  may  belong  not  to  him,  but  to  his  assignees.(»)  If,  on  the  other 
hand,  the  plaintiff  be  the  purchaser,  he  cannot  enforce  the  contract, 
because  he  is  incapable  of  so  paying  the  money  to  the  vendor,  as  that 
the  vendor  shall  be  certain  of  being  able  to  retain  it  against  the  assig- 
nees, (o) 

§  633.  Bankruptcy  does  not  of  itself  discharge  a  contract,  either  for 
the  sale  of  an  estate  of  inheritance  or  for  a  lease  ;  for,  with  regard  to  the 
latter,  the  assignees  may  covenant  in  the  same  manner  as  the  bankrupt 
would  have  been  bound  to.(p)  By  the  146th  section  of  the  statute,  12  & 
13  Vict.,  c.  106,  the  vendors  of  lands  may  compel  the  assignees  to  elect 
whether  they  will  abide  by  or  decline  an  agreement  for  sale. 

§  63-4.  So  the  insolvency  of  the  plaintiff  is  a  ground  of  defence  :( 5) 
and,  to  constitute  this  defence  in  the  case  of  a  continuing  contract  as  a 
lease,  it  is  not  necessary  that  the  plaintiff  should  be  proved  to  have  taken 
the  benefit  of  the  *acts  for  the  benefit  of  insolvent  debtors,  or  to  r:};9o-|-i 
have  given  up  all  his  property  for  the  benefit  of  his  creditors,  but  L  ~  J 
there  must  be  proof  of  general  insolvency,  so  as  to  show  that  the  plaintiff 
is  not  in  a  situation  to  perform  the  covenants  on  his  part.(r)  Thus  Lord 
Eldon,  remarking  on  the  insolvency  of  an  intended  lessee  as  being  an 
objection  of  more  or  less  weight  depending  on  the  circumstances,  in  the 
case  then  before  him  dissolved  an  injunction  against  an  ejectment  by  the 
landlord.  (*•) 

§  635.  IIow  far  insolvency  would  be  an  objection,  if  the  plaintiff  had 
subsequently  become  affluent,  does  not  appear  to  be  decided. (/) 

§  636.  Where  the  interest  under  an  agreement  has  been  assigned,  the 
insolvency  of  the  original  contractor,  who  is  the  assignor,  is  no  defence, 
though  that  of  the  assignee  would  be.(?<) 

§  637.  On  like  grounds,  the  felony  of  a  plaintiff  would  be  a  bar  to 
specific  performance. (t) 

§  638.  And  the  same  principle  is  illustrated  by  a  case  where  the 
deeds  were  destroyed.  It  was  a  suit  by  a  vendor  on  an  ordinary  contract 
for  sale  of  lands;  in  such  a  contract  is  implied  as  an  essential  term  on 
the  part  of  the  vendor,  the  proof  of  the  due  execution  of  the  deeds  which 
constitute  his  title,  and  the  delivery  up  of  them,  to  the  purchaser :  the 
deeds  having  been  subsequently  destroyed  by  fire,  the  performance  of 
this  terra  by  the  plaintiff  was  rendered  impossible,  and  the  contract  could 
not  be  specifically  performed. («') 

(n)  Lowes  v.  Lush,  14  Yes.  547. 

(o)  Franklin  v.  Lord  Brownlow,  14  Yes.  550. 

(/))  Brooke  v.  Hewitt,  3  Yes.  253. 

(q)  Crosbie  v.  Tooke,  1  My.  &  K.  431  ;  Price  v.  Assheton,  1  Y.  &  C.  Ex.  441. 

(/•)  Neale  v.  Mackenzie,  1  Ke.  474;  Willingliam  v.  Jovce,  3  Yes.  168. 

(s)  Huckland  v.  Hall,  8  Yes.  92. 

(t)  Price  V.  Assheton,  1  Y.  &  C.  Ex.  82,  91. 

(u)  Crosbie  v.  Tooke,  1  My.  &  K.  431. 

(v)  Willingham  v.  Joyce,  3  Yes.  168.  (iv)  Bryant  v.  Busk,  4  Russ.  1. 


196      5'RY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

[*282]  *CH AFTER   XX. 

OP  ACTS   IN    CONTRAVENTION   OF   THE   CONTRACT. 

§  639.  In  the  last  chapter  we  considered  cases  in  -wliicli  the  plaintiff 
had  disentitled  himself  by  default  on  his  part :  we  shall  now  consider 
the  closely  allied  cases  where  he  has  disentitled  himself,  not  by  default 
merely,  but  by  acts  in  fraud  of  the  contract,  tending  to  its  rescission  and 
the  subversion  of  the  relation  established  by  it.  For  where  the  party  to 
a  contract  who  asks  the  intervention  of  a  court  of  equity  for  its  specific 
execution,  has  been  guilty  of  conduct  in  contravention  of  the  contract, 
that  circumstance  may  be  put  forward  as  a  defence  to  the  suit,  in  the 
light  either  of  a  rescission  of  the  contract,(a)  or  as  a  personal  objection 
to  the  plaintiff,(i]  and  will  form  a  bar  to  specific  performance. 

§  640.  This  defence  rests  on  obvious  principles  of  justice.  If  the 
acts  are  such  as  would  have  worked  a  forfeiture  of  all  benefit  of  the  con- 
tract if  it  had  been  executed,  then  it  would  be  idle  for  the  court  to  com- 
pel a  grant  of  that  which,  if  granted,  would  have  been  forfeited,(c) — to 
create  a  legal  relation  which,  if  created,  would  be  immediately  dissoluble,  (d) 

§  641.  And  even  where  such  is  not  the  result  of  the  plaintifi''s  con- 
r*9Sm  tluct,  it  may  furnish  a  defence,  on  the  ground  *that  a  party  who 
L  "*  J  asks  the  court  to  enforce  an  agreement  in  his  favour  must  prove 
that  he  has  on  his  part  performed,  or  been  ready  and  willing  to  perform, 
the  agreement  in  all  its  material  and  essential  terms  :(e)  and  that  the 
plaintiff  who  would  have  equity  must  do  equity. 

§  642.  The  cases  by  which  this  principle  is  most  extensively  illustrated 
are  on  agreements  for  leases.  With  regard  to  these,  it  is  well  established 
that  where  a  person,  holding  under  an  agreement,  commits  waste,  treats 
the  laud  in  an  unhusbandlike  manner,  or  acts  in  breach  of  covenants 
which  would  be  contained  in  the  lease,  and  for  which  acts  a  right  of  re- 
entry would  accrue  to  the  landlord,  such  person  cannot  enforce  a  spe- 
cific performance  of  the  agreement.^/)  The  same  has  been  held  in  re- 
spect of  covenants  to  repair. (r?) 

§  643.  It  seems  that  even  where  the  lease,  when  executed,  would  con- 
tain no  proviso  for  re-entry,  yet  such  acts  might  prevent  a  specific  per- 
formance of  the  agreement  :(/i)  they  may  amount  to  a  personal  disqualifi- 
cation of  the  plaintiff,  though  not  to  a  forfeiture  of  the  legal  interest. 

§  644,  In  Gordon  v.  Smart,(A  where  an  agreement  to  grant  a  build- 
ing lease  had  been  entered  into,  and  the  plaintiff,  claiming  under  this 

(a)  Per  Lord  ElJon  iu  Knatchbull  v.  Grueber,  3  Mer.  142. 

(b)  Per  Lord  Eldon  in  Boardman  v.  Mostyn,  6  Ves.  472. 

(c)  Per  M.  R.  in  Lewis  v.  Bond,  18  Beuv.  87. 

(d)  Per  V.  0.  Turner  in  Gregory  v.  Wilson,  9  Ha.  G87. 

(e)  Walker  v.  Jeffreys,  1  Ha.  341. 

(/)  Per  Lord  Eldon  in  Hill  v.  Barclay,  18  Ves.  63  ;  Lewis  v.  Bond,  18  Beav.  85  ; 
Gregory  v.  Wilson,  9  Ha.  ()83. 

(,</)  Nunn  V.  Truscott,  3  De  G.  &  Sm.  304. 

(h)  See  per  Lord  Eldon  iu  Duke  of  Somerset  v.  Gourlay,  1  V.  &  B.  73. 

(i)  1  S.  &  S.  GG. 


ACTS    CONTRAVENING    CONTRACT.  197 

agreement,  bad  erected  a  brew-house  on  part  of  tbe  ground,  -wbich,  it 
was  contended,  would  be  an  injury  to  the  adjoining  property  of  the 
lessor ;  this  was  argued,  but  unsuccessfully,  as  a  reason  for  refusing  spe- 
cific performance,  the  vice-chancellor  saying  that  it  was  not  necessarily 
a  nuisance  :  he  left  open  the  question  whether,  if  it  had  in  itself  been  a 
nuisance,  that  would  have  been  a  defence  in  such  a  suit. 

§  645.  In  Thompson  v.  Guyon,(7i;)  where  there  was  a  lease  r^po^-i 
♦granted  with  a  proviso  for  re-entry  on  breach  of  any  of  the  L  "^  J 
covenants,  and  a  covenant  to  grant  a  further  term  at  the  end  of  the  ori- 
ginal term,  if  it  should  not  have  been  sooner  determined  by  the  lessee's 
acts  or  defaults  :  the  lessee  paid  all  his  rent,  and  continued  in  possession 
to  the  end  of  the  term,  but  had  in  fact  committed  breaches  of  covenant 
during  the  term,  of  which  the  lessor  was  not  cognizant  till  after  its  de- 
termination ;  a  bill  for  specific  performance  of  the  covenant  to  renew 
was  dismissed,  and  an  injunction  against  an  ejectment  was  refused,  on 
the  ground  that  the  lessor  ought  not  to  be  placed  in  a  worse  posjtion  at 
the  expiration  of  the  term  than  he  would  have  been  if  he  had  known  of 
the  breach,  and  availed  himself  of  it  during  the  term. 

§  046.  In  a  recent  case,(/)  in  which  there  was  a  conflict  of  evidence 
whether  there  had  been  any  breaches  of  the  covenants  which  the  agree- 
ment provided  should  be  contained  in  the  lease,  the  court  granted 
specific  performance  on  the  ground  of  part  performance,  but  enabled  the 
plaintiff  to  try  the  question  of  breach  of  covenant,  by  directing  the  lease 
to  be  dated  antecedently  to  the  alleged  breaches,  and  putting  him  on 
terms  to  admit  in  any  action  that  the  lease  was  executed  on  the  day  of 
its  date. 

§  047.  "Where  an  estate  was  sold  upon  the  condition,  amongst  others, 
that  immediate  possession  should  be  given,  and  in  the  course  of  disputes 
which  subsequently  arose  about  the  title,  the  vendors  tendered  the  pur- 
chaser his  deposit,  demanded  back  possession,  drove  the  purchaser's 
stock  off  the  estate,  and  gave  notice  to  the  tenants  not  to  pay  their  rent 
to  him, — this  was  conduct  inconsistent  with  the  condition  of  the  sale, 
and  was  held  to  operate  as  a  rescission  of  the  contract,  and  a  bar  there- 
fore to  specific  performance  at  the  suit  of  the  vendors. (m) 

*§  648.  It  seems  that  under  the  Irish  tenantry  acts,  and  per-  p^.^o--i 
haps  even  independently  of  them,  the  breach  by  the  tenant  of  *-  "  -I 
covenants  in  the  lease  will  not  be  a  bar  to  specific  performance  of  a  cove- 
nant for  renewal. (?i) 

§  649.  Having  thus  stated  and  illustrated  the  general  principle,  we 
may  now  consider  the  limitations  to  which  it  is  subject.  It  seems, 
therefore,  in  the  first  place,  that  where  a  plaintiff  has  been  guilty  of 
small  breaches  of  good  faith,  but  for  such  breaches  the  defendant  had  a 
remedy  in  his  own  hands,  and  if  the  interference  of  the  court  were  re- 
fused, the  plaintiff  would  be  without  any  adequate  remedy,  those  breaches 

(k)  5  Sim.  65.  (l)  Price  v.  Coombs,  1  De  G.  &  J.  34. 

(m)  Knatchbull  v.  Grueber,  1  Mad.  153;  S.  C.  3  Mer.  124;  S.  C.  3  Sm.  &  Gif. 
449. 

(n)  Trant  v.  Dwyer,  2  Bli.  N.  S.  11.     See  Thompson  v.  Guyon,  5  Sim.  C5. 


198       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

of  good  faitli  will  not  be  an  absolute  bar  to  relief,  tbougb  tbe  court  will 
disallow  the  plaintiff  all  costs. (o) 

§  650.  It  seems  further  that  where  the  default  on  the  part  of  the 
plaintiff  is  not  wilful,  such  non-performance  will  not  be  a  bar  :  so  where 
a  lessor  of  mines  covenanted  to  grant  a  further  term,  and  the  lessee 
covenanted  to  work  the  mines,  on  a  suit  by  the  lessee  for  a  specific  per- 
formance of  the  covenant  to  grant  a  further  term,  it  appeared  that  the 
lessee  had  not  worked  the  mines  in  consequence  of  their  being  drowned 
out :  the  court,  though  it  did  not  decide  the  point,  inclined  to  think 
that  this  would  be  no  bar  to  relief. (p) 

§  651.  So,  too,  breaches  of  covenants  that  are  merely  nominal  will  not 
bar  specific  performance. (g')  But  the  breach  must  be  so  trivial  as  that  a 
court  of  equity  would  relieve  against  a  forfeiture  at  law ;  for  the  court 
will  not  relieve  more  readily  whilst  the  whole  thing  rests  in  contract, 
than  it  will  after  the  legal  relation  has  been  actually  created. M 
r^Qop-i  §  652.  A  mere  waiver  in  law  of  such  breaches  of  a  ^contract 
L  "^  J  will  not  in  all  cases  prevent  the  defendant  from  urging  them  as 
an  objection  to  the  execution  of  the  contract  in  equity,  because  they 
may  still  form  a  personal  disqualification  to  the  plaintiff,  and  induce  the 
court  to  consider  whether  the  defendant  ought  to  be  put  in  the  power  of 
such  a  tenant.(s)  But  where  the  acts  are  not  such,  but  are  relied  on  as 
operating  a  forfeiture,  there  the  court  must  be  well  satisfied  that  there 
is  a  forfeiture  on  which  an  ejectment  could  be  maintained,  before  it  will, 
by  refusing  performance,  prevent  the  question  of  forfeiture  being  tried 
at  law  :(<)  and  if  a  landlord  has  never  complained  of  the  conduct  of  his 
tenant,  but  permitted  him  to  act  on  the  faith  of  the  contract,  it  would 
require  a  strong  case  to  enable  the  landlord  to  raise  such  objections  for 
the  first  time,  when  the  tenant  claimed  the  benefit  of  the  agreement. (zt) 

§  653.  We  have  elsewhere  seen  that  the  plaintiff  may  disentitle  him- 
self from  enforcing  the  performance  of  a  contract  by  acts  which,  though 
not  in  direct  contravention  of  his  part  of  it,  have  yet  effected  such  a 
change  in  the  relative  position  of  the  parties  as  to  render  it  inequitable  in 
the  plaintiff  to  insist  on  the  execution  of  the  contract. (y) 


[*287]  *CHAPTEll    XXI. 

OF   THE    NON-PERFORMANCE   OF   CONDITIONS. 

§  654.  A  CONTRACT  maybe  originally  conditional,  and  contingent  upon 
the  performance  of  some  act  or  the  happening  of  some  event.     Where 

[o]  Holmes  V.  Eastern  Counties  Railway  Company,  3  Jur.  N.  S.  737,  (Wood, 
V.  C.) 

(p)  Walker  v.  JefTreys,  1  Ila.  341. 

(q)  Walker  v.  Jeffreys,  1  Ha.  341 ;  Pain  v.  Coombs,  3  Sm.  &  Gif.  449. 

(r)  Gregory  v.  Wilson,  9  Ha.  683.  (s)  Boardman  v.  Mostyn,  6  Ves.  467. 

(t)  Per  V.  C.  Turner  in  Gregory  v.  Wilson,  9  Ha.  691. 

(?/.)  Mundy  v.  JollitTe,  5  My.  &  Cr.  167,  177,  reversing  S.  C.  9  Sim.  413. 

{v\  See  ante,  g  25C. 


NON-PERFORMANCE    OF    CONDITIONS.  199 

that  has  occurred,  the  contract  becomes  absolute,  and  rests  on  the  same 
footing  for  all  purposes  as  if  it  had  been  originally  made  positively  and 
■without  reference  to  any  contingency.(a)  But  until  it  has  thus  become 
absolute,  no  person  can  be  entitled  to  call  for  its  performance.  Where, 
therefore,  the  contract  is  in  its  origin  conditional,  it  may  aflford  a  ground 
of  defence  that  the  condition  has  not  been  performed. 

§  G55.  A  contract  may  be  conditional  either  by  express  words  of  con- 
dition, or  because  the  court,  upon  a  consideration  of  its  terms,  gathers 
that  to  have  been  the  intention  of  the  contracting  parties.  This  is  of 
course  a  question  to  be  decided  on  the  terms  of  each  contract.  It  will, 
therefore,  be  sufl&cient  briefly  to  allude  to  two  or  three  recent  cases  of 
practical  moment. 

§  656.  In  the  case  of  contracts  by  railway  companies,  the  question  has 
sometimes  arisen  how  far  they  are  conditional  on  the  formation  of  the 
railway.  In  one  case,(i)  where  a  company  before  incorporation  con- 
tracted with  a  landowner,  the  contract  provided  for  a  bridge  over  the 
^railway,  a  certain  deviation  of  the  line  and  other  works  entirely  |-^p(;^Q-i 
dependent  on  its  formation,  and  for  the  payment  of  £4500  as  L  "'  J 
purchase-money  for  certain  lands  to  be  taken  by  the  company,  and  for 
consequential  damage  to  the  land-owner's  estate.  The  contract  was  ex- 
pressly conditional  on  the  act  passing.  It  passed,  but  the  railway  was 
abandoned,  and  the  time  for  taking  the  lands  had  expired.  Nine-tenths 
of  the  agreement,  as  Lord  Justice  Knight  Bruce  remarked,  had  become 
impracticable  by  reason  of  the  abandonment  of  the  railway :  and  the 
lords  justices,  though  not  deciding  the  point,  evidently  inclined  to  the 
opinion  that  the  contract  was  conditional^  not  only  on  the  passing  of  the 
bill,  but  on  the  making  of  the  railway.  And  in  the  subsequent  case  of 
Lord  James  Stuart  v.  London  and  North-western  Railway  Compauy,(c) 
Lord  Cran worth  expressed  a  similar  opinion.  These  cases  have  been 
doubted, ((7)  but  rather  on  the  point  of  jurisdiction  than  of  the  construc- 
tion of  the  contracts  :  and  they  have  certainly  received  great  support 
from  the  case  of  Gage  v.  Newmarket  Railway  Company.(e)  There  the 
company  had  covenanted  with  the  plaintiff  that,  in  the  event  of  a  bill 
for  extending  their  powers  being  passed  in  the  then  present  session,  the 
company  should,  before  they  should  enter  on  any  part  of  the  plaintiff's 
lands,  pay  him  £-1900  purchase-money  for  any  portion  of  his  land,  not 
exceeding  forty-three  acres,  which  the  company  might  require  and  take, 
and  £7100  as  landlord's  compensation  for  damages  arising  by  the  sever- 
ance thereof.  It  was  held  that  the  covenant  was  not  for  the  payiuent  of 
an  absolute  sum  as  a  consideration  for  the  plaintiff's  withdrawing  his 
opposition,   but  a  payment  as  purchase-money  and  compensation  for 

(a)  Per  M.  R.  in  Regent's  Canal  Company  v.  Ware,  23  Bcav.  586. 
(6)  Webb  V.  Direct  London  and  Portsmouib  Railway  Company,  1  De  G.  M.  &  G. 
.521. 

(c)  1  De  G.  M.  &  G.  721.     See  also  5  Ho.  Lords,  351. 

(d)  Hawkes  v.  Eastern  Counties  Railway  Company,  1  De  G.  M.  &  G.  737 ;  S.  C. 
5  Ho.  Lords,  331. 

(e)  18  Q.  B.  457.  See  also  Edinburgh,  Perth,  and  Dundee  Railway  Company  v. 
Philip,  2  M'Q.  514. 


200       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

r*98Q1  severance,  -whicli  *could  not  be  due  when  no  land  was  required 
L  J  or  taken,  and  no  severance  effected  for  wlaicli  compensation  could 
arise. 

§  657.  The  performance  of  conditions  precedent  may  of  course  be 
waived  by  the  persons  entitled  to  their  performance. (/) 


[*290]  ^CHAPTER   XXII. 

or   THE   INCAPACITY   OP   THE   DEFENDANT   TO   PERFORM   HIS   PART    OF 
THE   CONTRACT. 

§  658.  The  incapacity  of  the  defendant  to  carry  the  contract  into 
execution  affords  a  ground  of  defence  in  a  suit  for  specific  performance. (a) 
This  contention  does  not,  like  that  grounded  on  the  incapacity  of  the 
plaintiff  to  perform  his  part,  rest  upon  any  principle  of  justice  that 
operates  in  favour  of  the  defendant,  but  upon  the  necessity  of  the  case 
arising  out  of  the  nature  of  the  relief  sought. 

§  659.  Where  a  bill  was  filed  against  the  provisional  committee  of  a 
projected  railway  company  for  the  specific  performance  of  an  agreement 
to  deliver  to  the  plaintiff  a  certain  number  of  scrip  certificates ;  there 
being  no  allegation  that  the  defendants  had  any  scrip  which  they  could 
deliver,  but  a  statement  from  which  the  contrary  might  rather  be  inferred, 
a  demurrer  was  allowed  on  the  ground  that  the  bill  did  not  show  any 
capacity  in  the  defendants  to  perform  the  contract.(6)  So  where  a  de- 
fendant showed  that  he  had  sold  the  property  in  question  for  a  valuable 
consideration  to  a  third  party,  no  performance  could  be  enforced  :(c)  and 
so,  again,  assuming  that  a  covenant  to  produce  deeds  can  be  obtained  by 
way  of  specific  performance  of  a  covenant  for  further  assurance,  it  seems 
r*9Qn  ^^^^  *^®  court  *will  not  attempt  so  to  carry  it  into  effect  where 
L         J  the  deeds  are  not  in  the  proposed  covenantor's  power.(f?) 

§  660.  It  is  not  necessary  to  the  specific  performance  of  a  contract,  that 
it  should  be  one  which  the  parties  at  the  time  of  entering  into  it  had  the 
power  of  carrying  into  effect,  nor  one  with  regard  to  which  it  depends 
on  themselves  alone  whether  they  would  ever  be  able  to  perform  it.  For 
where  a  party  enters  into  a  contract  without  at  the  time  having  the  pow- 
er of  performing  it,  and  afterwards  acquires  that  power,  he  is  bound  to 
perform  the  agreement  he  had  entered  into.(c)  Therefore  a  defendant 
cannot  object  at  an  early  stage  of  a  suit  for  specific  performance  that  he 
has  not  the  interest  he  has  contracted  to  sell,  as  he  cannot  be  permitted 
to  say  that  he  did  not  mean  to  acquire  that  interest. (^)     And  so  where 

(/)  Beatson  v.  Nicholson,  6  Jur.  C20. 

(a)  Per  Lord  Ilardwickc  in  Green  v.  Smith,  1  Atkj'.  573. 

(b)  Columbine  v.  Chichester,  2  Phil.  27.  Sec  also  Ellis  v.  Colman,4  Jur.  N.  S. 
350. 

(c)  Denton  v.  Stewart,  1  Cox,  258.  (d)  Ilallett  v.  Middleton,  1  Russ.  243. 
(e)  Carne  v.  Mitchell,  15  L.  J.  Ch.  287. 

{jjf)  Per  Lord  Eldon  in  Browne  v.  Warner,  14  Yes.  412. 


INCAPACITY    OF    DEFENDANT.  201 

a  defendant  had  agreed  to  give  a  certain  indemnity  to  be  secured  on  real 
estate,  and  alleged  that  he  had  not  real  estate  of  sufficient  value,  and 
contended  that  the  plaintiff  ought  to  accept  a  personal  indemnity,  it  was 
held  that  he  was  bound  to  purchase  real  estate  of  sufficient  value. (^) 

§  661.  The  same  principle  is  exemplified  in  a  casefA)  which  was  decided 
in  the  34th  year  of  Charles  II.  During  the  civil  wars  the  then  duke 
of  Newcastle  had  gone  abroad,  and  whilst  he  was  thus  absent,  the  defen- 
dant, who  was  his  heir  apparent,  without  authority  from  the  then  duke, 
sold  and  conveyed  to  the  plaintiff  certain  estates  of  the  duke,  and  receiv- 
ed the  purchase-money,  and  applied  it  for  the  benefit  of  the  family. 
The  defendant  having  subsequently  succeeded  to  the  dukedom  and  the 
estates  in  question  as  heir,  he  was,  by  the  lord  chancellor,  held  bound  to 
make  good  his  sale,  and  was  decreed  to  do  so  accordingly.  At  the  time 
of  the  contract,  specific  performance  would  have  been  impossible  1-^909-1 
*on  the  part  of  the  defendant,  but  it  had  subsequently  become  L  "  "'J 
possible  by  the  devolution  of  the  estate  contracted  to  be  sold. 

§  602.  On  the  same  principle  the  court  will  not  consider  as  void,  con- 
tracts, whether  by  private  persons  or  companies,  which  require  the  inter- 
position of  the  legislature  before  they  can  be  carried  into  effect,  and  ac- 
cordingly will  in  the  meanwhile  protect  the  property  in  issue. (i') 

§  063.  With  regard  to  real  estate,  the  statute  of  the  32  Hen.  VIII.  c. 
9,  prevents  the  sale  of  a  pretended  right  to  land  by  a  person  out  of  pos- 
session; but  if  a  person,  instead  of  selling  a  pretended  right,  contracts 
on  a  certain  future  day  to  convey  an  estate,  and  he  is  on  that  day  pos- 
sessed of  it,  the  contract  appears  not  to  be  within  the  operation  of  the 
statute,  and  to  be  binding  on  both  parties. (/i-) 

§  66-4.  And  so  also  with  regard  to  goods,  the  legality  of  contracts  for 
the  sale  of  such  property  not  at  the  time  in  the  possession  of  the  vendor 
is  now  well  established ;(/)  so  that  notwithstanding  an  opposite  decision 
of  Lord  Macclesfield,(?n)  such  a  contract  would  now  probably  be  enforced 
if  it  were  to  fall  under  the  jurisdiction  of  the  court. 

§  665.  As  the  consent  of  a  third  party  is,  or  may  be,  a  thing  impossible 
to  procure,  a  defendant  who  has  entered  into  a  contract  to  the  perfor- 
mance of  which  such  consent  is  necessary,  will  not,  in  case  such  consent 
cannot  be  procured,  be  decreed  to  obtain  it,  and  thus  perform  an  impossi- 
bility, (h) 

(ff)  "Walker  v.  Barnes,  3  Mad.  247. 

(h)  Clayton  v.  Duke  of  Newcastle,  2  Cas.  in  Ch.  112. 

(j)  Great  Western  Railway  Company  v.  Birmingham  and  Oxford  Junction  Rail- 
way Company,  2  Phil.  597  ;  per  Lord  St.  Leonards  in  Ilawkes  v.  Eastern  Counties 
Railway  Company,  1  De  G.  M.  &  G.  75G ;  Devenish  v.  Brown,  26  L.  J.  Ch.  23 
(Wood,  V.  C);  Frederick  v.  Coxwell,  3  Y.  &  J.  514.  As  to  contracts  requiring 
proposed  legislation  to  render  them  legal,  see  Mayor  of  Norwich  v.  Norfolk  Rail- 
way Company,  4  Ell.  &  Bl.  397. 

(k)  De  Medina  v.  Norman,  9  M.  &  W.  820 ;  and  see  further  as  to  this  statute, 
§130. 

(l)  Hibblethwaite  v.  M'Morine,  5  M.  &  W.  462. 

(m)  Cuddee  v.  Rutter,  5  Vin.  Abr.  538,  pi.  21. 

(n)  Howell  v.  George,  1  Mad.  1 ;  Grey  r.  Ilesketh,  Ambl.  2G8  ;  S.  C.  3  Burn. 
Eccl.  Law,  336,  5th  edit.  See  also  Marsh  v.  Milligan,  3  Jur.  N.  S.  979,  (Wood,  V. 
C.) ;  Beestou  v.  Stuteley,  "Week.  Rep.  1857,  1858,  206. 


202    FI^Y    ON    SrECIFIC    PERFORMANCE    OF    CONTRACTS. 

r*90qn  *§  ^^^*  ^^^^i^'^®  ^^^  husband,  or  husband  and  wife,  have  entered 
L  ""  J  into  a  contract  to  sell  the  estate  of  the  wife,  the  court  used 
formerly  to  decree  the  husband  to  procure  his  wife's  consent,  and  in 
default  commit  him  to  gaol  until  she  yielded. (o)  But  the  absurdity  of 
such  a  course  is  obvious ;  because  the  court  of  chancery  would  be  putting 
all  the  compulsion  it  could  upon  the  wife  to  induce  her  to  do  an  act,  of 
which  the  essence  is  that  it  is  done  without  compulsion ;  the  court  of 
chancery  would  be  distressing  her  to  give  her  consent,  whilst  the  court  of 
common  pleas  is  examining  her  to  see  that  she  is  acting  from  free  will 
alone;  and  it  is  now  accordingly  established  that  the  court  will  not  inter- 
fere specifically  to  perform  contracts  where  a  wife's  consent  is  requisite, 
and  she  refuses  to  give  it.(|:>) 

§  667.  It  must  not,  however,  be  understood  that  the  incapacity  of  the 
defendant  to  perform  a  contract  literally  and  exactly  in  all  its  parts  will 
be  a  bar  to  its  performance.  From  the  distinction  acknowledged  in  courts 
of  equity  between  the  essential  and  the  non-essential  terms  of  a  contract, 
it  follows  that  where  a  contract  cannot  be  performed  literally,  it  may  yet 
be  performed  cypres  ;  and  all  the  cases  in  which  compensation  is  made 
by  the  defendant  are  illustrations  of  this  deduction.  Some  further  in- 
stances remain  to  be  considered. 

§  668.  Thus  in  Carey  v.  Staiford,(2')  in  the  exchequer,  in  1725,  where 
a  man  executed  a  deed  affecting  to  convey  lands,  therein  described  of  the 
yearly  value  of  £22,  to  his  servant,  and  no  such  lands  existed,  the  court 
compelled  him  to  convey  lands  of  equal  value. 

§  669.  And  so  if  a  copyholder  were  to  agree  to  grant  a  *lease 
L  J  for  a  longer  term  than  the  custom  allowed,  he  would,  it  seems,  be 
compelled  to  effectuate  his  contract  in  substance,  by  from  time  to  time 
executing  leases  for  such  terms  as  he  could,  till  he  had  made  up  the 
term  contracted  for.(r) 

§  670.  Errington's  case,(s)  though  not  on  a  specific  performance,  is 
another  illustration  of  this  principle.  Ho  had  contracted  for  £9000  to 
build  a  bridge  over  the  Tyne,  and  to  maintain  it  for  seven  years,  and  had 
entered  into  a  bond  in  that  sum  conditioned  for  performance  of  the  con- 
tract :  the  bridge  was  built,  but  thrown  down  by  a  flood  :  and  it  was  found 
that  no  bridge  on  that  scite  could  stand.  Thereupon  he  filed  his  bill  for 
relief  from  the  bond  ;  and  upon  his  building  a  bridge  upon  a  neighbour- 
ing scite  where  it  could  stand,  and  submitting  to  an  i.ssue  of  quantum 
damirljicatus  by  the  change  of  scite,  he  was  relieved  from  the  penalty 
of  the  bond. 

§  671.  Where  a  contract  in  its  original  form  is  obnoxious  to  difficul- 

(o)  Barrington  v.  Horn,  5  Via.  Abr.  54*7,  pi.  35;  S.  C.  2  Eq.  Cas.  Abr.  17,  pi. 
7  ;  Hall  V.  Hardy,  3  P.  Wms.  187 ;  Daniel  v.  Adams,  Ambl.  495  ;  Morris  v.  Ste- 
phenson, 7  Ves.  474. 

[p)  Bryan  v.  Wooley,  1  Bro.  P.  0.  184  ;  Emery  v.  Wase,  8  Ves.  505  ;  Frederick 
V.  Coxwell,  3  Y.  &  J.  514 ;  Howell  v.  George,  1  Mad.  1  ;  Buck  v.  Whelley,  in  D.  P. 
1  Mad.  7,  n. ;  Martin  v.  Mitchell,  2  J.  &  W.  413,  425 ;  per  Mansfield,  C.  J.  in  Davis 
V.  Jones,  1  N.  R.  209. 

(q)  3  Sw.  427,  n.  (r)  Paxton  v.  Newton,  2  Sm.  &  Gif.  437. 

(s)  Per  Lord  Redesdale  in  Davis  v.  Hone,  2  Sch.  k  Lef.  351 ;  Errington  v.  Ay- 
nesly,  2  Bro.  C.  C.  341. 


INCAPACITY    OF    DEFENDANT.  203 

ties  on  the  score  of  illegality,  but  it  can  nevertheless  be  lawfully  performed 
in  substance,  the  court  will  so  model  it  as  to  effectuate  this  purpose. 
Thus  it  having  been  made  by  statute  illegal  to  contract  for  the  tenant  to 
pay  the  tithe  rent-charge,  a  contract  for  a  lease  stipulating  that  the  tenant 
should  pay  a  certain  sum  for  rent  and  also  the  rent-charge,  may  be  carried 
into  effect  by  the  court  by  means  of  a  lease  reserving  as  rent  the  two 
sums  in  the  agreement  treated  respectively  as  rent  and  rent-charge. (<) 

§  072.  And  the  court  will  probably  be  still  more  anxious  to  execute 
a  contract  cy  j^res,  where  by  subsequent  legislation  a  contract  originally 
valid  may  have  become  invalid  in  part.  Thus  where  a  dean  and  chap- 
ter, prior  to  the  disabling  statute  of  13  Eliz.,  covenanted  for  the  renewal 
of  a  lease  for  ninety-nine  years,  and  the  plaintiff  brought  *his  bill  ^^cyQc-i 
asking  for  a  renewal  for  such  term  as  the  corporation  could  grant  L  "^  J 
under  the  statute,  it  was  ultimately  decided  by  the  house  of  lords,  in 
accordance  with  the  opinion  of  Sir  Joseph  Jekyll,  but  overruling  the 
judgments  of  the  Lord  Chancellor  King,  Lord  Chief  Justice  Raymond, 
and  Mr.  Justice  Price,  that  the  plaintiff  was  entitled  to  this  ci/  jjres  re- 
lief. (?*) 

§  673.  It  seems  that  in  some  cases  in  which  the  contract  would  be 
incapable  of  being  specifically  enforced  in  its  very  terms  for  other 
reasons  than  illegality,  it  may  be  executed  by  the  court  cy  pres  if  such  a 
plan  be  feasible.  In  one  case(^A  there  was  an  agreement  entered  into  by 
the  defendants,  within  two  years  to  procure  the  heir-at-law  of  A.  B.  to 
convey  certain  estates  to  the  plaintiffs,  or  within  the  same  period  to  peti- 
tion the  bouse  of  lords  for,  and  to  use  their  utmost  endeavours  to  pro- 
cure, an  act  of  parliament  for  substituting  a  trustee  in  place  of  the  heir, 
in  case  such  heir  could  not  be  found,  or  there  was  no  heir :  on  a  bill 
filed  for  the  performance  of  this  agreement,  the  court  decreed  the  defen- 
dants to  allow  their  names  to  be  used  in  an  application  to  parliament  for 
the  act :  an  agreement  by  a  person  to  use  his  utmost  endeavours  seems 
to  be  one  which  the  court  could  not  specifically  execute. 

§  674.  In  some  railway  cases,  the  court  has  shown  a  great  inclination 
to  regard  what  it  considers  as  the  substance  of  the  agreement.  Thus, 
where  company  A.  contracted  with  the  plaintiff  for  the  sale  of  the  lands 
required  for  their  proposed  line,  and  for  the  withdrawal  of  his  opposi- 
tion in  consideration  of  £20,000  to  be  paid  to  him,  in  case  their  bill 
should  pass  into  law :  there  was  a  rival  company  B.,  which  would  re- 
quire different  lands  of  the  plaintiff :  by  an  agreement  made  between  the 
two  companies  during  the  proceedings  before  the  committee  of  the  com- 
mons, it  *was  agreed  that  a  reference  should  be  made  as  to  which  p^,-,_^^ 
of  the  two  lines  should  be  carried  into  effect,  and  that  the  sue-  L  "  -I 
cessful  company  should  take  to  all  the  engagements  of  the  other.  The 
line  of  company  B.  was  approved,  and  company  A.'s  bill  was  accordingly 
withdrawn  ;  company  B.  refused  to  pay  the  plaintiff  the  £20,000,  alleging, 
amongst  other  things,  that  it  was  conditional  on  the  bill  of  company  A. 
passing,  and  that  the  lands  required  wore  not  those  contracted  for  :  but 

[t)  Carolan  v.  Brab.izon,  3  Jon.  &  L.  200. 

Jcttesworth  v.  Dean  and  Chapter  of  St.  Paul's,  .'^el.  C.  in  Ch.  QQ,  ante,  |  9. 
Frederick  v.  Coxwell,  3  V.  .jc  J.  514. 


\u)  Be 
\v)  Fr 


204      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

on  a  bill  filed  by  tlie  plaintiff  against  them,  tbeir  demurrer  was  overruled 
by  tlie  vice-chancellor  of  England  and  Lord  Cottenham.(?{;)  In  a  subse- 
quent case,(:c)  however,  the  same  vice-chancellor  considered  the  passing 
of  a  bill  of  an  amalgamated  company  sufficiently  distinct  from  the  passing 
of  the  bill  of  one  of  the  companies  to  relieve  the  amalgamated  company 
from  an  agreement  binding  in  case  of  the  bill  of  the  one  company  passing. 
The  decree  was  affirmed  by  the  lord  chancellor,  but  on  a  different 
ground.  (3/) 

§  675.  Where  an  agreement  is  in  the  alternative,  so  as  to  give  an 
election  to  the  party  to  perform  it,  and  one  of  the  alternatives  is  at  the 
time  of  the  contract,  or  subsequently  becomes,  impossible,  the  question 
arises  how  far  the  contracting  party  is  bound  to  the  performance  of  the 
alternative  that  remains  possible.  The  cases  seem  to  divide  themselves 
into  (1)  those  where  one  alternative  is  impossible  at  the  time  of  the  con- 
tract, (2)  where  it  subsequently  becomes  so  by  the  act  of  God,  or  (3)  by 
the  act  of  the  other  party  to  the  contract,  or  (4)  by  the  act  of  a  stranger. 
These  different  cases  must  be  briefly  considered. 

§  676.  (1)  Where  at  the  time  of  the  contract  one  alternative  is  im- 

-,„  -.  possible  or  void,  the  party  to  execute  the  contract  *is  bound  to 
L  "*  J  the  performance  of  the  other  alternative. (s)  So  where  the  con- 
dition of  a  bond  was  to  pay  a  certain  sum,  or  render  in  execution  a  per- 
son who  had  been  previously  discharged,  and  the  court  held  the  latter 
alternative  illegal  and  void,  it  was  decided  that  the  obligor  was  bound 
to  perform  the  other,  and  that  not  having  done  so,  the  bond  was  for- 
feited, (o)  And  where  an  award  directed  that  a  sum  of  money  should  be 
paid  or  be  secured  to  be  paid,  and  did  not  define  the  security  to  be  given, 
and  the  question  was  whether  the  award  was  not  void  for  uncertainty  : 
it  was  held  not  to  be  so,  on  the  ground  that  if  an  award  direct  one  of 
two  things  to  be  done  in  the  alternative,  and  one  is  void  for  uncertainty 
or  is  impossible,  it  is  yet  incumbent  on  the  party  to  perform  the  other  of 
them.  (6) 

§  677.  (2)  The  leading  authority  on  the  second  class  of  cases  is  Laugh- 
ter's case,(c)  where  it  is  laid  down,  "that  where  a  condition  of  a  bond 
consists  of  two  parts  in  the  disjunctive,  and  both  are  possible  at  the  time 
of  the  bond  made,  and  afterwards  one  of  them  becomes  impossible  by 
the  act  of  God,  the  obligor  is  not  bound  to  perform  the  other  part."  On 
this  case  it  may  be  remarked  in  the  first  place,  that  the  case  itself  did 
not  require  the  enunciation  of  the  principle, (rZ)  as  both  alternatives  in 
the  bond  there  put  in  suit  were  rendered  impossible  ;(e)  and  in  the  se- 
cond place,  it  is  to  be  observed,  that  subsequent  decisions  show  that  the 

(w)  Stanley  v.  Cheshire  and  Birkenhead  Railway  Company,  9  Sim.  264  ;  S.  C.  3 
My.  &  Cr.  773. 

(x)  Greenhalgh  v.  Manchester  and  Birmingham  Railway  Company,  9  Sim.  416. 

(7/)  3  Jly.  &  Cr.  784.  See  further  as  to  the  results  of  amalgamation.  Earl  of 
Lindsey  v.  Great  Northern  Railway  Company,  10  Ha.  664. 

(z)  Com.  Dig.  Condit.  K.  2 ;  Wigley  v.  Blackwal,  Cro.  Eliz.  780. 

{a)  Da  Costa  v.  Davis,  1  B.  &  P.  242. 

(6)  Simmonds  v.  Swaine,  1  Taunt.  549. 

(c)  5  Rep.  21,  b. ;  S.  C.  s.  n.  Eaton's  case,  Moore,  357  ;  s.  n.  Eaton  v.  Laughter, 
Cro.  Eliz.  398 ;  accordingly  Warner  v.  White,  T.  Jon.  95. 

(d)  Barkworth  v.  Young,  4  Drew,  1,  24.  (e)  See  the  case  in  Cro.  Eliz.  398. 


INCAPACITY    OF    DEFENDANT.  205 

principle  was  stated  too  broadly,  and  that  even  at  law  the  intention  of 
the  parties  will  be  gathered  from  the  particular  language  of  each  instru- 
ment. In  the  case  of  Studholmes  v.  Mandell,(/)  the  court  said  that  the 
rule  and  reason  *of  Laughter's  case  ought  not  to  be  taken  so  p^.^^^, 
largely  as  Coke  has  reported  it,  but  according  to  the  nature  of  ■-  "  -I 
the  case;  and  Treby,  C.  J.,  quoted  a  casein  which  on  a  bond  conditioned 
either  to  make  a  lease  for  the  life  of  the  obligee  before  such  a  day  or  to 
pay  £100,  and  the  obligee  died  before  the  day,  it  was  held  in  the  common 
pleas  that  the  obligor  should  pay  the  £100.  And  in  Drummond  v.  Duke 
of  Bolton, (f/)  in  an  action  on  a  bond  conditioned  to  pay  or  secure  to  the 
plaintiff"  or  her  children,  by  William  Ashe,  her  then  intended  husband, 
£3000  within  sis  months  after  the  defendant  should  become  Duke  of 
Bolton,  the  defendant  pleaded  that  William  Ashe  died  without  having 
any  children  before  the  defendant  became  duke :  but  the  plea  was  over- 
ruled, on  the  ground  that  the  intention  of  the  parties  must  be  regarded, 
and  that  it  could  never  have  been  their  intention  that  the  money  should 
not  be  paid  to  the  plaintiff  in  case  she  should  not  have  a  child  by  William 
Ashe  at  the  time  of  the  plaiutiff's  becoming  duke,  though  if  she  then 
had  a  child,  the  defendant  might  have  had  his  election  to  whom  to  pay 
the  money. 

§  678.  And  this  view  of  the  law  was  fully  supported  in  a  recent  case(7i) 
before  Vice-Chancellor  Kindersley,  on  a  promise  by  A.  on  the  marriage 
of  his  dauijhter  with  B.,  that  he  would  at  his  death  leave  to  his  daughter 
an  equal  portion  with  his  other  children.  The  daughter  died  in  the  life- 
time of  her  father,  leaving  children,  and  this  circumstance  was  argued  to 
be  a  discharge  from  the  agreement  by  an  act  of  God.  But  the  vice- 
chancellor  held  that  the  agreement  might  have  been  performed  in  either 
of  two  ways, — namely,  by  A.'s  making  a  provision  for  his  daughter  by 
will  or  by  his  dying  intestate:  and  that  though  the  death  of  the  daughter 
precluded  him  from  performing  it  in  the  first  way,  he  was  not  thereby 
exonerated  from  performing  *it  in  the  second,  and  that  the  bill  r:)...9,jA-i 
by  which  the  husband  prayed  for  an  equal  share  in  the  testator's  L  "' '  J 
residuary  estate,  was  not  on  that  ground  demurrable.  His  honor,  after 
referring  to  some  of  the  previous  cases,  expressed  his  opinion  that  it  is 
impossible  to  lay  down  any  universal  proposition  either  way,  and  that 
each  case  must  depend  upon  the  intention  of  the  parties  :  but  that  where 
this  intention  is  clear  that  one  of  the  parties  shall  do  a  certain  thing,  but 
he  is  allowed  his  option  to  do  it  in  one  or  other  of  two  modes,  and  one 
of  these  modes  becomes  impossible  by  the  act  of  God,  he  is  bound  to 
perform  it  in  the  other  mode  :  and  that  in  the  case  before  the  court,  it 
was  manifestly  the  intention  of  the  parties  that,  in  one  way  or  other,  the 
daughter  should  have  an  equal  share  of  the  testator's  property;  and  that 
if  the  father  was  prevented  by  the  act  of  God  from  performing  his  obli- 
gation in  one  way,  he  was  bound  to  perform  it  in  the  other  way,  which 
was  possible. (A 

(/)  1  Lord  Raym.  279;  Anon.  1  Salk.  ITO. 

(g)  Say,  243.     See  also  per  Walmesley,  J.,  in  More  v.  Morecomb,  Cro.  Eliz.  SG4. 

(A)  Barkworth  v.  Young,  4  Drew,  1. 

(i)  p.  25.     The  rule  of  the  civil  law  seems  to  agree  with  this.     "  Si  quis  illuJ 

December,  1858. — l-k 


206      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  679.  In  Joaes  v.  How,(7i)  a  father  on  the  marriage  of  his  daughter 
covenanted,  by  some  act  inter  vivos  or  by  will,  to  leave  his  daughter 
a  certain  provision  :  no  act  inter  vivos  was  done  by  the  covenantor,  nor 
did  his  will  contain  any  provision  for  her :  the  daughter  died  in  the  life- 
time of  her  father  :  the  Court  of  Common  Pleas,  on  a  case  stated  for  its 
opinion  by  direction  of  Sir  James  Wigram,  V.  C,  held  that  the  cove- 
nantee had  no  cause  of  action,  on  the  ground,  it  appears,  of  the  provision 
by  will  having  failed  by  the  death  of  his  daughter,  and  a  consequent 
exemption  from  liability  to  perform  the  other  alternative.  The  vice- 
chancellor,  though  expressing  an  opinion  that  by  this  view  the  intention 
of  the  parties  was  disappointed,  as  the  provision  was  intended  to  be  abso- 
r*^nm  ^"*'*^'  ^^^  ^^^  mode  of  making  *it  only  intended  to  be  left  to  the 
L  -I  discretion  of  the  covenantor,  yet  confirmed  the  certificate,  and 
dismissed  the  bill  with  costs. 

§  680.  (3)  Where  one  of  the  alternatives  becomes  impossible  by  the 
act  or  default  of  the  party  for  whose  benefit  the  contract  is  to  be  executed, 
the  other  alternative  is  discharged  and  need  not  be  performed. (A  There- 
fore in  debt  on  an  obligation  conditioned  for  the  delivery  up  by  the 
defendant  to  the  plaintifi"  of  three  obligations  in  which  the  plaintiff  was 
bound  to  the  defendant,  or  for  the  execution  to  the  plaintiff  of  such 
release  of  them  as  should  be  devised  by  the  plaintiff's  counsel  before 
Michaelmas,  a  plea  that  neither  the  plaintiff  nor  his  counsel  devised  any 
release  before  Michaelmas  was  held  good  by  a  majority  of  the  judges  in 
the  Queen's  Bench,  on  the  ground  that  where  the  obligee  disables  the 
obligor  to  perform  the  one  part,  the  law  discharges  him  from  the  other. (m) 
This  authority  has  since  been  followed  by  another  case(??)  in  the  same 
court,  in  which  in  debt  on  a  bond  by  the  defendant  conditioned  to  grant 
an  annuity  within  six  months  after  the  death  of  A.,  and  if  he  refused, 
on  request  then  to  pay  £300  :  a  plea  that  no  grant  had  been  tendered 
Avithin  six  months  was  held  good. 

§  681.  (4)  Where  one  alternative  is  prevented  by  the  act  of  a  stranger 
rendering  its  performance  impossible,  the  other  alternative  must  be  per- 
formed. This  was  held  in  a  case  in  the  4th  of  Henry  VII. ,(o)  which 
decided  that  if  one  be  obliged  to  enfeoff  me  of  certain  lands,  or  to  marry 
A.  S.  before  such  a  day,  and  a  stranger  marry  A.  S.  before  the  day,  the 
obligor  must  make  a  feoffment  of  the  lands  :  but  otherwise,  if  the  obligee 
married  A.  S.  before  the  day,  for  then  the  other  alternative  is  discharged. 

vol  illud  stipulatus  sit,  tot  obligationes  sunt  quot  corpora;  qiiare  si  altera  res  ex 
quiicunque  causu  dari  non  potest,  altera  nihilominus  dabetur."' — Warnkonig,  In- 
stil. Jiir.  Horn.  Priv.  lib.  iii.  c.  2,  t.  1,  §  703. 

(k)  7  11a.  2G7;  S.  C.  9  C.  B.  1.  {I)  Com.  Dig.  Condit.  K.  2. 

(m)  Grenniiigham  v.  Ewer,  Cro.  Eliz.  39G,  539. 

{n)  Basket  y.  Basket,  1  Mod.  2G5 ;  2  Mod.  200. 

(o)  Quoted  in  Grenningham  v.  Ewer,  Cro.  Eliz.  397. 


RESCISSION    OF    THE    CONTRACT.  207 

♦CHAPTER   XXIII.  [*301] 

OF   THE   RESCISSION   OF   THE   CONTRACT. 

§  682.  The  rescission  of  a  contract  neces.sarily  constitutes  a  bar  to  the 
performance  of  it  by  either  of  the  parties  to  it.  A  rescission  may  be  af- 
fected either  by  a  novation, — that  is,  the  entering  into  a  new  contract, 
which  takes  the  place  of  and  puts  an  end  to  the  original  one/p) — or  b}' 
a  mere  agreement  to  rescind. 

§  683.  Generally  speaking,  the  parties  to  a  contract,  supposing  them 
both  to  continue  sui  Juris  and  capable  of  contracting,  have  a  right  to 
determine  it  by  either  of  these  modes,  and  they  may  do  so  even  when 
the  contract  between  them  affects  the  interest  of  some  third  person ;  ex- 
cept, it  seems,  where  there  has  been  a  part  performance  of  it.  8o  that 
where  A.  by  deed  agreed  with  B.  that  his  (A.'s)  son  should  reside  with 
and  be  brought  up  by  B.,  who  covenanted  to  leave  him  certain  property, 
and  there  was  no  appreciable  part  performance  as  regards  the  child,  so 
that  liis  condition  in  life  hacT  not  been  altered,  and  no  expectation  on  his 
part  was  defeated,  it  was  held  that  A.  and  B.  might  by  agreement  rescind 
the  deed,  though  it  would,  it  seems,  have  been  different  if  there  had  been 
any  part  performance  affecting  the  child. (y) 

*§  684.  A  novation  by  the  intervention  of  a  new  person  puts  j-^^ „.^ 
an  entire  end  to  the  contract  between  the  original  parties,  by  l  "^  ^J 
establishing  a  contract  between  one  of  the  original  contractors  and  the 
new  person.  Thus  where  A.  sold  shares  to  B.,  and  B.  sold  them  to  C, 
and  A.  executed  a  deed  of  transfer  to  C,  which  C.  refused  to  reo-ister : 
A.  brought  a  bill  for  specific  performance  against  B.,  but  it  was  held 
that  A.  having  assigned  the  shares  to  C,  he  had  determined  the  privity 
of  contract  with  B.,  and  that  he  could  not  make  a  title  to  the  shares. 
The  main  question  in  the  case  was  whether  C.  was  merely  the  nominee 
of  B.,  or  there  was  a  substantive  contract  between  A.  and  C. :  the  latter 
was  the  view  taken  under  the  circumstances. (/•) 

§  685.  With  regard  to  the  rescission  of  an  existing  contract  by  a  nova- 
tion effected  by  the  introduction  of  a  new  term,  it  is  not  every  chance 
in  a  term  of  the  original  agreement  which  will  amount  to  such  a  substi- 
tution. Thus  where  there  was  an  agreement  for  a  lease,  and  a  parol 
agreement  was  subsequently  made  for  the  reduction  of  the  rent,  which 
it  was  contended  worked  a  rescission  of  the  original  contract.  Lord  St. 
Leonards  said,  "I  should  be  sorry  to  hold  that  because  a  landlord 
abates  the  rent  for  a  time  or  permanently,  he  therefore  abandons   the 

whole  contract I  should  do  a  most  mischievous  thing  were  I  to 

hold  that  a  mere  abatement  of  rent,  which  occurs  every  day,  would  alto- 

(/))  "Novatio  est  priorisdebiti  in  aliam  obligationem  aut  civilem  aut  naturalem 
transfusio  et  translatio  :  hoc  est,  cum  ex  pritcedenti  causa  ita  nova  constituatur. 
ut  prior  perimatur." — Dig.  lib.  xlvi.  t.  2,  1.  1.     See  also  Instit.  lib.  iii.  tit.  30,  s.  3. 

(q)  Hill  V.  Gommc,  1  Bear.  540;  S.  C.  5  Mv.  &  Cr.  250,  ante,  §  113. 

(r)  Shaw  v.  Fisher,  5  De  G.  M.  &  G.  59G;  Holden  v.  Hayn,  1  Mer.  47;  Hall  v. 
Laver,  3  Y.  &  C.  Ex.  191 ;  Stanley  v.  Chester  and  Birkenhead  Railvsay  Company 
9  Sim.  2G4 ;  S.  C.  3  Mj.  &  Cr.  773 ;  ante,  §  8G. 


208       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

getlier  put  an  end  to  the  existing  contract,  and  create  a  new  tenancy  from 
year  to  year.  The  abatement  of  the  rent  was  rather  a  confirmation  of 
the  existing  tenancy,  with  a  relaxation  of  one  of  the  terms  of  it."(s^ 

§  686  So  also,  suggestions  made  by  either  party  after  contract,  for 
the  purpose  of  obviating  any  diiEculties  in  the  *completion  of 
L  J  it,  will  not  be  taken  to  amount  to  a  novation  :  so  to  hold  would 
be  to  preclude  parties  from  endeavouring  to  remove  objections  by  con- 
cessions of  any  kind.(^) 

§  687.  As  it  is  the  existence  of  the  new  contract  that  works  the  ex- 
tinction of  the  old,  this  new  one  must,  of  course,  be  a  valid  and  binding 
agreement :  so  that,  for  instance,  where  a  second  agreement  is  alleged, 
but  without  consideration,  the  original  agreement  will  remain  intact,  and 
may  be  executed  without  regard  to  the  second. (i/) 

§  688.  This  makes  it  requisite  to  consider  the  evidence  of  the  nova- 
tion alleged.  (1)  Where  the  original  contract  is  by  parol,  the  new  one 
may,  of  course,  be  by  parol  also. 

§  689.  (2)  Where  the  original  agreement  was  in  writing,  though  not 
by  law  required  so  to  be,  the  new  agreement  may  be  evidenced  in  any 
way  which  establishes  it  according  to  the  principles  of  the  court.  Thus 
an  agreement,  though  under  seal,  may  in  a  court  of  equity  be  waived  by 
a  course  of  conduct  from  whence  the  presumption  of  a  new  contract  in 
substitution  arises.  "In  ordinary  partnerships,"  said  Lord  Eldon, 
<<  nothing  is  more  clear  than  this,  that  although  partners  enter  into  a 
written  agreement,  stating  the  terms  upon  which  the  joint  concern  is  to 
be  carried  on,  yet  if  there  be  a  long  course  of  dealing,  or  a  course  of  deal- 
ing not  long,  but  still  so  long  as  to  demonstrate  that  they  have  all  agreed 
to  change  the  terms  of  the  original  written  agreement,  they  may  be  held 
to  have  changed  these  terms  by  conduct."(v)  And  accordingly,  in  ano- 
ther case,(?p)  where  an  agreement  for  a  partnership  was  decreed  to  be 
specifically  executed,  the  court  directed  an  inquiry,  whether  any  and 
what  variations  had  been  made  in  the  original  agreement  by  the  consent 
of  the  partners,  *and  directed  the  deed  to  be  settled  by  the  mas- 
L         J  ter  having  regard  to  such  variations. 

§  690.  (3)  Where  the  original  contract  is  by  law  required  to  be  in  writ- 
ing, the  new  one  must  be  in  writing  also;  so  that,  for  instance,  where  the 
relation  of  landlord  and  tenant  is  constituted  by  writing,  an  agreement  for 
an  abatement  of  rent  must  be  in  writing  also.(x)  From  the  principles  of 
the  court,  however  in  regard  to  part  performance,  an  exception  naturally 
arises,  as  the  new  contract  may  in  this,  as  in  any  other  case,  be  by  parol,  if 
supported  by  acts  of  part  performance.  Thus,  for  example,  where  W.  leased 
to  N.  a  house  for  eleven  years,  and  was  to  allow  £20  for  repairs,  and  this 
agreement  was  signed  and  sealed  by  the  parties,  and  N.  finding  that  the 
repairs  of  the  house  would  cost  more  than  £20,  laid  out  a  further  sum,  in 

(.s)  Clarke  v.  Moore,  1  Jofi.  &  Lat.  723,  particularly  728,  729. 
(<)  Monro  v.  Taylor,  8  Ha.  51,  particularly  61. 
(m)  Robson  V.  Collins,  7  Ves.  130. 

(v)  Const  V.  Harris,  T.  &  R.  496,  523;  Gediles  v.  Wallace,  2  Bli.  270,  297;  Jack- 
son V.  Sedgwick,  1  Sw.  460 ;  per  Lord  Langdale  in  Smith  v.  Jeycs,  4  Bcav.  505. 
(w)  England  v.  Curling,  8  Beav.  129. 
(x)  O'Connor  v.  Spaight,  1  Sch.  &  Lef.  305. 


RESCISSION    OF    THE    CONTRACT.  209 

consequence  of  W.'s  having  promised  to  enlarge  the  term,  but  without 
mentioning  for  what  term  :  Sir  -Joseph  Jekyll  carried  the  parol  agreement 
into  effect,  on  the  ground  that  it  was  a  new  agreement,  and  that  the  laying 
out  the  money  was  a  part  performance  on  the  one  part,  which  made  it 
needful  to  execute  the  parol  agreement  on  the  other.(j/) 


§  G91.  The  contract  may,  as  we  have  already  seen,  be  determined  by 
a  simple  agreement  to  rescind  it. 

§  092.  Independently  of  the  Statute  of  Frauds,  the  rule  of  law  does 
not  allow  the  variation  of  an  agreement  that  has  been  reduced  to  writing 
to  be  evidenced  by  parol ;  but  it  allows  parol  evidence  of  matters  collateral 
to  the  contract.  Thus,  for  instance,  it  may  be  shown  by  parol  evidence 
that  a  document  purporting  to  be  an  agreement  was  signed  conditionally, 
and  so  only  in  the  nature  of  an  escrow, — the  question  thus  decided  being 
dehors  the  writing  :(2)  and  so,  *too,  rescission  or  waiver  being  in  |-jj,o„_.. 
its  nature  subsequent  and  collateral  to  the  agreement,  may  be  ^  -* 
proved  by  parol  testimony. (a) 

§  693.  How  far  this  principle  ought  to  have  been  affected  by  the  Sta- 
tute of  Frauds  is  a  question  which  has  elicited  opposing  views  ;  on  the 
onp  hand,  it  has  been  said  that  the  statute  provides  that  no  action  shall 
be  brought  on  any  contract  of  the  descriptions  there  specified  except  it 
be  in  writing,  but  does  not  provide  that  every  such  written  contract 
shall  support  an  action  :  on  the  other  side,  it  has  been  argued  that  an 
agreement  to  waive  a  purchase  of  land  is  as  much  an  agreement  concern- 
ing lands  as  the  original  contract. (&)  However,  it  is  perfectly  well 
ascertained  that  a  contract  in  writing,  and  by  law  required  to  be  in  writ- 
ing, may  in  equity  be  rescinded  by  parol  ;(c)  and  waiver  by  parol  there- 
fore furnishes  a  sufficient  answer  to  a  bill  for  specific  performance. ('A 

§  G94.  Even  where  the  original  agreement  is  under  seal,  it  may  be  re- 
scinded in  equity  by  a  parol  agreement  evidenced  only  by  conduct. (e) 

§  095.  How  far  such  a  parol  waiver  is  a  good  defence  at  law  appears 
still  undetermined. (A 

§  096.  But  the  parol  agreement  thus  to  rescind  one  in  writing,  must 
amount  to  a  total  abandonment  of  the  whole  contract,  and  not  to  a 
partial  waiver  of  some  of  its  terms ;  for  to  allow  of  such  a  proceeding 
would  be  to  have  a  contract  ^proved  partly  by  writing,  and  p:^oAp-i 
partly  by  parol  ^(.7)  it  would  be  a  parol  novation  of  a  written  L  "*  -"J 
agreement,  which  we  have  already  seen  to  be  inadmissible  where  the 

(y)  5  Vin.  Abr.  522,  pi.  38.  (z)  Pym  v.  Campbell,  6  Ell.  &  Bl.  370. 

{a)  Davis  v.  Sj-nionds,  1  Cox,  402,  406.  This  seems  denied  as  to  waiver  at  law 
by  Lord  llardwicke,  in  Bell  v.  Howard,  9  Mod.  305. 

(b)  Per  Lord  Hardwicke,  in  Buckhouse  v.  Crosby,  2  Eq.  Cas.  Abr.  33. 

(c)  Goman  v.  Salisbury,  1  Vera.  240 ;  Inge  v.  Lippingwcll,  2  Dick.  4ij9  ;  S.  C.  5 
Vin.  Abr.  51G,  pi.  22  ;  per  Grant,  M.  R.,  in  Ex  parte  Lord  Ilcbestcr,  7  Yes.  37". 
See  also  Backhouse  v.  Mohun,  3  Sw.  434,  n. ;  Buckhouse  v.  Crosby,  2  Eq.  Cas. 
Abr.  32,  pi.  44. 

(d)  Davis  v.  Symonds,  1  Cox,  402  ;  Robinson  v.  Page,  3  Russ.  114. 

(f)  Hill  V.  Gomme,  1  Bcav.  540.  See  also  Lady  Lanesborough  v.  Ockshott,  1 
Bro.  P.  C.  151. 

(/)  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58;  Harvey  v.  Grabham,  5  A.  k  E.  61. 
(ff)  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58. 


210      mY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

law  requires  the  agreement  to  be  evidenced  by  writing  :(7t)  and  therefore 
the  agreement,  or  the  circumstances  from  which  it  is  inferred,  must 
show  an  absolute  dissolution  and  abandonment  of  the  contract. fi) 

§  697.  Any  circumstances  or  course  of  conduct  from  whence  can  be 
clearly  deduced  an  agreement  to  put  an  end  to  the  original  contract,  will 
amount  to  a  rescission  of  it.  Thus,  to  give  one  or  two  examples  :  where 
on  default  in  payment  of  the  purchase-money  one  party  said  to  the  other 
that  there  must  be  an  end  of  the  negotiation,  and  the  other  assented  ; 
the  contract  was  held  to  have  been  rescinded. (7i;)  And  where  the 
vendor  was  allowed  for  a  long  period  to  remain  in  possession,  and  the 
purchaser's  representatives  seventeen  years  afterwards  treated  themselves 
in  a  deed  between  the  parties  as  entitled  to  interest  on  the  debt  which 
had  been  the  consideration  for  the  sale  and  not  to  the  rents  and  profits 
of  the  land,  the  contract  was  held  to  have  been  waived. 0 

§  698.  But  the  court  must  be  satisfied  of  this  total  abandonment  by 
both  parties  of  the  contract.  <'  The  court,"  said  Lord  St.  Leonards, 
"  requires  as  clear  evidence  of  the  waiver  as  of  the  existence  of  the  con- 
tract itself,  and  will  not  act  upon  less."(m)  And  in  another  case,  his 
lordship  said  that  unless  a  party  has  by  his  conduct  forfeited  his  right, 
"  abandonment  of  a  contract,  according  to  the  law  of  this  court,  is  a 
r*^07~\  contract  in  itself;"  and  accordingly  *he  refused  to  hold  a  loose 
L  J  conversation  which  was  alleged  as  a  waiver  of  a  contract  for  a 
lease,  to  amount  to  such  a  new  contract. (/i) 

§  699.  It  is  to  be  borne  in  mind  that  the  conduct  of  one  party,  which 
may  debar  him  from  insisting  on  a  contract,  may  yet  not  prevent  its 
being  enforced  against  him  or  amount  to  a  rescission  of  it  :(o)  and 
further,  that  there  are  many  cases  in  which  there  has  been  such  a  de- 
parture in  conduct  from  the  agreement  between  the  parties,  that  the 
court  will  refuse  to  execute  the  agreement,  though  the  effect  of  that 
conduct  may  not  have  been  to  substitute  a  valid  contract  for  the  old  one, 
or  absolutely  to  rescind  the  old  one  for  all  purposes.  Qj) 

§  700.  It  is  common  to  introduce  into  contracts  stipulations  for  their 
avoidance  or  rescission  on  the  happening  of  certain  specified  events.  It 
will  be  desirable  briefly  to  consider  these  stipulations. 

§  701.  When  a  contract  stipulates  that  on  the  happening  of  a  certain 
event  it  shall  be  void,  the  construction  put  upon  it  by  the  courts  gene- 
rally is,  that  it  may  on  this  event  be  rescinded  by  the  party  injured  by 
such  event.  Thus,  a  proviso  that  in  case  the  vendor  of  an  estate  cannot 
deduce  a  good  title,  or  the  purchaser  shall  not  pay  the  money  at  the 
appointed  day,  the  contract  shall  be  void,  has  been  held  to  mean  that  in 

(h)  Ante,  I  690. 

(?)  Price  V.  Dyer,  17  Ves.  35G ;  Robinson  v.  Page,  3  Russ.  114;  Lord  Thnrlow 
seems  to  have  tliought  that  a  part  might  be  rescinded  by  parol,  in  Jordan  v.  Saw- 
kins,  1  Ves.  Jun.  404. 

(k)  Carter  v.  Dean  of  Ely,  7  Sim.  211. 

(l)  Earl  of  Rosse  v.  Sterling,  4  Dow.  442.     Sec  also  Hill  v.  Gomme,  1  Beav.  540. 

(?«)  Carolun  v.  Brabazon,  3  Jon.  &  Lat.  200,  209. 

(n)  Moore  v.  Crofton,  3  Jon.  &  Lat.  438,  445. 

(o)  Price  v.  Assheton,  1  Y.  &  C.  Ex.  82. 

(p)  An  exami)lc  of  this  seems  afforded  by  the  case  of  the  Paris  Chocolate  Com- 
pany V.  Crystal  Palace  Company,  3  Sm.  &  Gif.  119. 


RESCISSION    or    HIE    CONTRACT.  211 

the  former  case  the  purchaser,  and  in  the  latter  the  vendor,  may  avoid 
the  contract,  and  not  that  the  contract  is  utterly  void.((/) 

§  7U2.  A  right  to  rescind  an  agreement  on  the  non-performance  of  an 
act,  which  act  it  is  the  duty  of  the  party  invested  with  the  right  of  res- 
cission to  perform  if  he  can,  will  *not  give  such  party  a  right  r:f-qnQ-| 
to  refuse  to  perform  his  part  of  the  agreement,  but  will  be  held  L  '  J 
to  apply  where  the  act  cannot  be  done :  thus,  where  there  is  a  condition 
that  if  any  objection  shall  not  be  removed  within  a  limited  time,  the 
vendor  shall  be  at  liberty  to  annul  the  contract,  the  vendor  is  not  en- 
titled to  neglect  to  remove  any  objection,  and  then,  on  the  strength  of 
his  own  neglect,  to  annul  the  contract ;  but  the  condition  will  entitle 
him  to  rescind  the  contract  if,  having  done  all  that  is  incumbent  on 
him,  he  fail  to  show  a  good  title. {?•)  But  where  the  right  to  rescind  is 
limited  to  arise  in  case  of  his  being  unable  or  unwilling  to  do  the  act, 
the  case  is  of  course  different,  and  he  is  exempted  at  his  election  from 
any  obligation  to  do  the  act.(s) 

§  703.  The  right  to  rescind  a  contract  must  be  exercised  so  soon  as 
any  one  of  the  events  which  give  rise  to  the  right  happens,  or  is  known 
to  the  person  entitled  to  it.  Thus  in  the  case  of  a  transaction  grounded 
on  fraud,  the  party  deceived  must,  on  the  discovery  of  the  fraud,  elect 
to  rescind  or  to  treat  the  transaction  as  a  contract. (/)  And  so  where 
conditions  of  sale  stipulated  that  if  there  was  any  objection  which  the 
vendor  should  be  unable  or  unwilling  to  remove  he  might  rescind  the 
contract,  and  the  purchaser  should  be  entitled  to  his  deposit  without  in- 
terest or  costs,  it  has  been  held  that  such  a  condition  is  confined  to  the 
objections  first  taken  after  the  abstract  is  delivered,  and  that  a  treaty 
between  the  parties  for  the  completion  of  the  purchase  is  a  waiver  of  the 
condition, (?/)  it  being,  of  course,  evidence  of  the  vendor's  willingness  to 
remove  the  objection.  Such  a  condition  will  apply,  if  it  be  acted  on  by 
the  vendor  the  moment  the  defect  is  known  to  him,  but  will  not  allow 
him  to  spend  time  in  fruitless  efforts  to  remove  the  objection,  and  then 
to  rescind  the  contract  on  the  terms  of  "^ the  condition.^;;)  And  (-^oaq-i 
so  where  money  is  payable  by  instalments,  and  there  is  a  power  L  -^ 
to  rescind  on  breach  of  the  contract,  this  must  be  taken  advantage  of  at 
once,  and  the  receipt  of  money  due  on  a  subsequent  instalment  is  a 
waiver  of  the  right  to  rescind  for  default  in  respect  of  a  previous  one.(ii) 

§  704.  Nor  will  the  right  to  rescind  revive  merely  because  of  the  sub- 
sequent discovery  of  some  incident  of  the  fraud,  or  other  ground  on  which 
the  right  arises,  which  was  not  known  at  the  time  of  waiver  :  so  where 
in  a  transaction  based  on  fraud,  the  purchaser  did  not  immediately  on 
the  discovery  of  the  fraud  repudiate  the  contract,  but  on  the  discovery  of 

(q)  Roberts  v.  Wyatt,  2  Taunt,  2G8.  See  also  Doe  d.  Nash  v.  Birch,  1  M.  &  W. 
402;  Hyde  v.  Watts,  12  M.  &  W.  254. 

(r)  Page  v.  Adams,  4  Beav.  269. 

(s)  Tanner  v.  Smith,  10  Sim.  410 ;  Morlcy  v.  Cook,  2  Ha.  106,  and  see  next  ^. 

(t)  Campbell  v.  Fleming,  1  A.  &  E.  40. 

(m)  Tanner  v.  Smith,  10  Sim.  410 ;  Morley  v.  Cook,  2  Ha.  106.  See  also  Cutts 
V.  Thodey,  13  Sim.  206. 

(i-)  M-Culloch  V.  Gregory,  1  K.  &  J.  286;  Lane  v.  Debcnham,  17  Jur.  1005. 

{w)  Hunter  v.  Daniel,  4  Ha.  420. 


212       FRY    ON    SPECIFIC    PEKFORMANCE    OF    CONTRACTS. 

a  further  circumstance  of  fraud  sought  to  do  so,  he  was  held  incapable 
then  of  rescinding  the  contract. (x)  "  To  entitle  him  to  do  so,"  said  Mr. 
Justice  Patteson  in  that  case,  "  he  should,  at  the  time  of  discovering  the 
fraud,  have  elected  to  repudiate  the  whole  transaction.  Instead  of  doing 
so,  he  deals  with  that  for  which  he  now  says  that  he  never  legally  con- 
tracted. Long  after  this,  as  he  alleges,  he  discovers  a  new  incident  in 
the  fraud.  This  can  only  be  considered  as  strengthening  the  evidence 
of  the  original  fraud;  and  it  cannot  revive  the  right  of  repudiation  which 
has  been  once  waived." 

§  705.  But  where  the  contract  stipulates  for  a  right  of  rescission  in 
respect  of  separate  breaches,  the  waiver  of  one  will  not  waive  another  : 
so  that  where  there  was  an  agreement  for  the  payment  of  money  by 
instalments,  and  that  time  should  be  of  the  essence,  and  further,  a  power 
to  rescind  on  breach  of  the  contract,  it  was  held  that  each  default  of 
payment  of  an  instalment  at  the  stipulated  time  was  a  fresh  breach  of 
the  contract,  on  which  the  right  to  rescind  arose. (^) 
r*'"'1fn  "^^  "'^^'  ^^^^^^^'^  there  are  conditions  for  compensation  and  for 
L  -J  rescission,  the  courts  will,  for  obvious  reasons,  generally  construe 
them  so  as  to  confine  the  right  to  rescind  to  cases  not  within  the  condi- 
tion for  compensation.  Thus,  in  a  case  in  which  particulars  of  sale  by 
error,  but  without  fraud  or  gross  negligence  on  the  part  of  the  vendor, 
described  part  of  the  property  as  a  customary  leasehold  holden  of  a  manor 
renewable  every  twenty-one  years  on  payment  of  a  customary  fine,  and 
the  property  was  in  fact  holden  only  for  a  term  of  twenty-one  years  with 
no  customary  right  of  renewal }  the  fourth  condition  of  sale,  after  providing 
for  the  delivery  of  the  abstract  and  of  objections  to  the  title,  stipulated 
that  the  vendor  should  be  at  liberty  at  any  time  after  the  delivery  of 
such  objections  to  vacate  the  sale,  and  that  the  deposit  was  thereupon  to 
be  returned  without  interest,  costs,  or  other  compensation;  the  fifth  con- 
dition of  sale  provided  that  the  purchaser  should  accept  the  existing  lease 
and  the  assignment  to  the  vendor  as  a  sufiicient  title  to  this  property; 
and  the  sixth  condition  stipulated  that  if  through  any  mistake  the  estate 
should  be  improperly  described  or  any  error  or  mis-statement  be  inserted 
in  the  particular,  the  same  should  not  vitiate  the  sale,  but  that  compen- 
sation should  be  made  by  either  party,  as  the  case  might  be:  the  pur- 
chaser filed  a  bill  for  specific  performance  with  compensation,  contending 
that  the  error  was  within  the  sixth  condition  :  the  vendor  resisted  per- 
formance and  sought  to  vacate  the  contract,  on  the  ground  that  it  was 
within  the  fourth  condition.  Vice-Chancellor  Page  Wood,  referring  to 
the  fifth  condition  as  explaining  the  use  of  the  word  title  in  the  condition, 
held  that  this  was  rather  a  mis-statement  of  the  subject-matter  of  the  sale 
than  of  the  vendor's  title  to  it,  and  therefore  within  the  sixth  and  not 
within  the  fourth  condition  of  sale;  and  accordingly,  enforced  specific 
r*Ql  11  performance  with  compensation  :(,■:)  and  the  master  of  the  *rolls 
L         J  put  a  like  construction  on  similar  conditions  in  a  similar  case.(o) 

§  707.  It  remains  to  remark  that  the  plaintiif  filing  a  bill  for  the  spe- 

(z)  Campbell  v.  Fleming,  1  A.  &  E.  40.  (//)  Hunter  v.  Daniel,  4  Ila.  420. 

(z)  Painter  v.  Newby,  11  Ha.  26;  Nelthorpe  v.  Ilolgate,  1  Coll.  203. 
[a)  Hoy  V.  Smythies,  22  Beav.  510. 


LAPSE    OF    TIME.  213 

cific  performance  of  a  contract,  may  pray  in  the  alternative  that,  if  the 
contract  cannot  be  enforced,  it  may  be  rescinded  and  delivered  up  to  be 
cancelled. (i)  When  the  bill  is  by  the  vendor,  and  the  purchaser  has 
been  in  possession,  this  alternative  prayer  may  embrace  an  account  of 
the  rents  and  profits. (r) 


*CH  AFTER    XXIV.  [*312] 

OF   THE   LAPSE    OF   TIME. 

§  708.  The  expiration  of  time  after  the  contract  has  been  entered  into, 
and  before  the  application  to  the  court  for  its  interference,  or  the  fact 
that  the  plaiutift'  has  not  performed  his  part  of  the  contract  at  the  time 
specified,  may  furnish  grounds  of  defence  to  suits  for  specific  perform- 
ance. 

§  709.  At  law  the  plaintifi"  must  show  that  all  those  things  which  are 
on  his  part  to  be  performed,  have  been  performed  within  a  reasonable 
time,  or  where  time  is  specified  by  the  contract,  within  the  time  so  speci- 
fied;  and  at  law  time  is  thus  always  of  the  essence  of  the  contract. (a) 
But  in  equity  the  question  of  time  is  differently  regarded :  for  a  court  of 
equity  discriminates  between  those  terms  of  the  contract  which  are  formal 
and  a  breach  of  which  it  would  be  inequitable  in  either  party  to  insist  on 
as  a  bar  to  the  other's  rights,  and  those  which  are  of  the  substance  and 
essence  of  the  agreement  '■{l>h'\  and,  applying  to  contracts  those  principles 
which  have  governed  its  interference  in  relation  to  mortgages, (cc)  it  has 
held  time  to  he  prima  facie  non-essential,  *and  has  accordingly  p^^..^-. 
granted  specific  performance  of  agreements  after  the  time  for  L  J 
their  performance  has  been  sufifered  to  pass  by  the  party  asking  for  the 
intervention  of  the  court,  if  the  other  party  has  not  shown  a  determina- 
tion not  to  proceed. ff7)  There  are,  however,  many  cases  in  which  it 
proves  a  bar  to  relief,  and  these  we  may  now  proceed  to  consider  under 
three  heads,  viz.  (1)  those  cases  where  time  was  originally  of  the  essence 
of  the  contract,  (2j  where  though  not  so,  it  was  engrafted  into  it  by  sub- 

(i)  Moseley  v.  Virgin,  3  Yes.  184  ;  Costigan  v.  Hastier,  2  Sch.  &  Lef.  IGO,  166; 
Stapylton  v.  Scott,  13  Ves.  425 ;  Clarke  v.  Faux,  3  Russ.  320  ;  King  v.  King,  1  Mj. 
&  K.  442  ;  Douglass  v.  London  and  Xorthwestern  Railway  Company,  3  K.  k.  J.  173. 

(c)  AVilliams  v.  Sliaw,  3  Russ.  178,  n. 

(a)  Berry  v.  Young,  2  Esp.  640,  u.;  AVilde  v.  Fort,  4  Taunt.  334;  Stowell  v.  Ro- 
binson, 3  Bing.  N.  C.  928;  Alexander  v.  Godwin,  1  Bing.  N.  C.  671.  Where  a 
condition  as  to  time  is  a  mutual  stipulation  and  not  a  condition  precedent,  tbe 
lapse  of  time  is  of  course  no  bar  to  an  action  on  tlie  contract.  Hall  v.  Cazeuqve, 
4  East,  477  ;  Havelock  v.  Geddcs,  10  East,  555;  Borneman  v.  Tooke,  1  Camp.  377 ; 
Lucas  V.  Godwin,  3  Bing.  N.  C.  737  ;  Laraprell  v.  Bellericay  Union,  3  Ex.  283. 

{bb)  Parkin  v.  Tliorold,  16  Beav.  59. 

Ice)  See  per  Lord  Eldon  in  Seton  v.  Slade,  7  Yes.  273. 

(<f)  Pincke  v.  Curteis,  4  Bro.  C.  C.  329  ;  Radclifle  v.  Warrington,  12  Yes.  326. 
See  the  discussion  of  this  doctrine  bv  Lord  Cranworth  and  Sir  J.  Romilly,  in  Par- 
kin V.  Thorold,  2  Sim.  N.  S.  1  ;  S.  C'  16  Beav.  59. 


214      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

sequent  notice,  and  (3)  those  cases  where  the  delay  has  been  so  great  as 
to  constitute  laches  disentitling  the  party  to  the  aid  of  the  court,  and 
evidencing  an  abandonment  of  the  contract  irrespectively  of  any  peculiar 
stipulations  as  to  time. 

§  710.  (1)  Time  is  originally  of  the  essence  of  the  contract  in  the  view 
of  a  court  of  equity,  whenever  it  appears  to  have  been  part  of  the  real 
intention  of  the  parties  that  it  should  be  so,  and  not  to  have  been  inserted 
as  a  merely  formal  part  of  the  contract. (e)  As  this  intention  may  either 
be  separately  expressed,  or  may  be  implied  from  the  nature  or  structure 
of  the  agreement,  it  follows  that  time  may  be  originally  of  the  essence  of 
a  contract  as  to  any  one  or  more  of  its  terms,  either  by  virtue  of  an  ex- 
press condition  in  the  agreement  itself  making  it  so,  or  by  reason  of  its 
being  implied.  It  will  be  convenient  to  consider  the  cases  separately ; 
premising,  however,  that  the  point  that  time  is  of  the  essence  of  the 
contract  is  one  which  should  be  made  by  the  party  insisting  on  it  with- 
out delay.  (/) 

§  711.  The  court  seems  at  one  time  to  have  gone  so  far  in  its  disre- 
gard of  time  as  to  consider  that  it  was  of  no  consequence  in  equity  :{n\ 
[-*oij-|  and  accordingly.  Lord  Thurlow(/i)  *seems  to  have  maintained 
L  -J  that  no  expression  in  the  agreement  could  make  time  of  the  ori- 
ginal essence  of  the  contract.  Lord  Kenyon,  however,  maintained  the 
contrary :(/)  Lord  Thurlow's  doctrine  was  doubted  by  Lord  Eldon  -.{l^-) 
and  accordingly,  express  stipulations  rendering  time  of  the  essence  have 
been  maintained  as  valid  and  binding  as  much  in  equity  as  at  law, (A  and 
in  respect  of  covenants  for  the  renewal  of  leases  as  well  as  of  contracts 
for  sale.(??i) 

§  712.  In  order  to  render  time  thus  essential,  it  must  be  clearly  and 
expressly  stipulated  that  it  shall  be  so  :  it  is  not  enough  that  a  time  is 
mentioned  during  which  or  before  which  something  shall  be  done.  There- 
fore, where  a  day  for  payment  had  been  inserted,  it  was  held  not  to  be 
thereby  rendered  essential  -.{ii^  where  a  day  was  specified  for  the  delivery 
of  the  abstract  it  was  equally  non-essential,  although  the  purchaser  upon 
its  expiration  immediately  refused  to  proceed  :(o)  and  in  a  case  where  a 
day  had  been  specified  for  the  completion  of  the  contract,  the  master  of 
the  rolls(|))  held  it  to  be  non-essential,  though  in  so  doing  he  differed 
from  the  previous  observations  of  Lord  Cran worth,  then  a  vice-chancellor, 
made  in  the  same  case  at  an  earlier  stage. (5) 

§  713.  Time  may  be  implied  as  essential  in  a  contract,  from  the  nature 
of  the  subject-matter  with  which  the  parties  are  dealing.    "  If,  therefore," 

{e)  Ilipwell  V.  Knight,  1  Y.  &  C.  Ex.  401. 

?/)  Monro  v.  Taylor,  8  Ha.  51,  62. 

[g)  Gibson  v.  Patterson,  1  Atlvy.  12,  which  has  been  thought  an  erroneous  re- 
port.    See  Lloyd  v.  Collett,  4  Bro.  C.  C.  469,  n.  (3). 

[h)  Gregson  v.  Riddle,  cited  by  Romilly,  arg.  7  Ves.  268. 

{i)  Mackreth  v.  Marlar,  1  Cox,  259.  [k]  In  Seton  v.  Slade,  T  Ves.  270. 

{I)  Hudson  V.  Bartram,  3  Mad.  440;  Lloyd  v.  Rippingale,  cited  1  Y.  &  C.  Ex. 
410.     See  also  Iloneyman  v.  Marryatt,  21  Beav.  14,  24. 

(to)  Baynham  v.  Guy's  Hospital,  3  Ves.  295. 

In)  Hearne  v.  Tenant,  13  Ves.  287. 

(0)  Roberts  v.  Berry,  10  Beav.  31,  affirmed  3  De  G.  M.  &  G.  284. 

\l>)  Parkin  v.  Thorold,  IG  Beav.  59.  (y)  S.  C.  2  Sim.  N.  S.  1. 


LAPSE    OF    TIME.  215 

said  Mr.  Baron  Aklorson,(r)  '<the  thing  sold  be  of  greater  or  less  value 
according  *to  the  effluxion  of  time,  it  is  manifest  that  time  is  of  r*q-i  r-i 
the  essence  of  the  contract :  and  a  stipulation  as  to  time  must  L  J 
then  be  literally  complied  with  in  equity  as  well  as  in  law."  In  respect 
of  reversionary  interests,  therefore,  it  is  held  to  be  of  the  essence  of  jus- 
tice, that  contracts  for  sale  should  be  executed  immediately  and  without 
any  delay. (s) 

§  714.  So,  again,  where  the  subject-matter  is  from  its  nature  exposed 
to  daily  variation,  the  court  inclines  to  hold  time  to  be  material,  as  in 
the  sale  of  the  stock  in  a  public-house,(<)  in  contracts  for  annuities  on 
lives, (m)  and  in  purchases  of  government  stock. (i') 

§  715.  And  so,  again,  where  the  object  of  the  contract  is  a  commer- 
cial enterprise,  the  court  is  strongly  inclined  to  hold  time  to  be  essential, 
whether  the  contract  be  for  the  purchase  of  land  for  such  purposes,  or 
more  directly  for  the  prosecution  of  trade  :[w^  the  court  has  acted  on 
this  principle  in  a  contract  respecting  land  which  had  been  purchased  for 
the  erection  of  mills,(x)  and  in  another  contract  for  the  sale  of  a  public- 
house  in  Camden  Town./y) 

§  71G.  This  principle  applies  with  especial  force  to  contracts  relating 
to  mines.  The  nature  of  all  mining  transactions  is  such  as  to  render 
time  essential ;  for  no  science,  foresight,  or  examination  can  aiford  a  sure 
guarantee  against  sudden  losses,  disappointments,  and  reverses,  and  a 
person  claiming  an  interest  in  such  undertakings  ought  therefore  to 
show  himself  in  good  time  willing  to  partake  in  the  possible  loss  as  well 
as  profit. (;)  So  in  several  cases  it  has  been  held  of  the  essence  in  con- 
tracts for  the  *sale  of  mines  and  works :(«)  and  in  a  recent  case  |-^<^^p-, 
a  delay  of  three  years  and  a  half  before  taking  any  step  to  enforce  L  -• 
specific  performance  of  an  agreement  to  take  certain  coal  mines  was  held 
a  bar  to  relief.  (^) 

§  717.  Again,  where  the  contract  had  relation  to  the  supply  of  coal, 
and  eleven  months  were  allowed  to  elapse  before  filing  the  bill,  the  arti- 
cle being  one  fluctuating  from  day  to  day  in  its  market  price,  the  court 
held  the  delay  a  ground  for  declining  its  interference  :(c)  and  where  the 
contract  contemplated  the  payment  of  moneys  to  be  applied  towards 
obtaining  patents,  time  was  from  the  nature  of  the  object  in  view  held 
to  be  of  the  essence. ^7) 

(r)  In  Hipwell  V.  Knight,  1  Y.  &  C.  Ex.  416. 

(«)  Newman  v.  Rojrers,  4  Bro.  C.  C.  391 ;  Carter  v.  Dean  of  Ely,  7  Sim.  211. 

(()  Cosliike  V.  Till,l  Russ.  376.  (u)  Withy  v.  Cottle,  T.  &  R.  78. 

(v)  Dolorct  V.  Rothschild,  1  S.  &  S.  590.  See  also  Lewis  v.  Lord  Lechmere,  10 
Mod.  503. 

(«')  Walker  v.  Jeffreys,  1  Ha.  341.  (x)  Wright  v.  Howard,  1  S.  &  S.  190. 

(?/)  Seaton  v.  Mapp,  2  Coll.  C.  C.  550.  where  the  essentiality  of  time  was  arrived 
at  from  the  conditions  as  well  as  from  the  subject-matter. 

(2)  Per  K.  Bruce,  L.  J.,  in  Prendergast  v.  Turton,  1  Y.  &  C.  C.  C.  110,  and  ia 
Clegg  V.  Edmondson,  2G  L.  J.  Ch.  681. 

(a)  Parker  v.  Frith,  1  S.  &  S.  199,  n. ;  per  Lord  Eldon  in  City  of  London  v. 
Mitford,  14  Ves.  58. 

(b)  Eads  V.  Williams,  4  De  G.  M.  &  G.  GT4;  Clegg  T.  Edmondson,  26  L.  J.  Ch. 
673,  (L.  JJ.) 

(c)  Pollard  t.  Clavton.  1  K.  k  J.  462  :  per  Lord  Redcsdale  in  Crofton  v.  Ormsby, 
2  Sch.  &  Lcf.  604.  (J)  Payne  v.  Banner,  15  L.  J.  Ch.  227. 


216       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  718.  So,  again,  where  a  contract  specified  a  time  by  wliicli  calls 
were  to  be  paid  up,  or  in  default  the  shares  were  to  be  forfeited  ;((;)  and 
where  a  contract  gave  an  option  to  be  exercised  before  a  certain  time,  to 
convert  loan  notes  into  shares  :(/)  in  both  these  cases  time  was  from  the 
nature  of  the  subject-matter  of  the  contract  held  to  be  essential.  The 
case  of  Macbryde  v.  Weekes(^)  is  a  strong  illustration  of  this  principle ; 
for  there  the  plaintiff  by  the  contract  undertook  to  purchase  a  field  ad- 
joining his  own,  to  procure  an  assignment  of  a  term,  and  to  do  other 
things  which  usually  require  time  :  but  the  nature  of  the  subject-matter 
of  the  contract,  which  was  a  colliery,  was  held  to  make  time  of  the  essence 
of  the  contract,  to  the  extent  of  rendering  it  incumbent  on  the  vendor  to 
use  his  utmost  diligence  in  completing  the  contract,  and  give  the  pur- 
chaser a  right  to  decline  completing,  if  the  vendor  failed  to  do  so. 
r*m71  *§  ^■'^^'  ^^^6re  hardship  would  result  from  considering  time 
L  J  immaterial,  as  where  delay  in  completion  would  involve  one  of  the 
parties  in  a  serious  liability  or  loss,  the  court  will  incline  to  consider 
time  as  being  of  the  essence.  Thus  where  a  tenant,  without  any  definite 
interest,  agreed  for  the  sale  of  his  goodwill  and  business  to  a  purchaser 
to  be  completed  on  the  25th  of  March^  that  day  was  considered  essential, 
inasmuch  as  if  the  contract  were  not  then  completed,  the  vendor  might 
render  himself  liable  as  tenant  for  the  ensuing  year. (A)  And  so,  again, 
where  the  body  to  participate  in  the  purchase-money  being  a  chapter, 
was  liable  to  variation,  non-payment  of  the  consideration  money  at  the 
specified  time  was  held  fatal  to  the  subsistence  of  the  contract.(<) 

§  720.  Where  the  vendor  stipulates  that  time  shall  be  of  the  essence 
in  respect  of  some  of  the  conditions  in  his  favour,  the  court  inclines  to 
hold  it  essential  in  respect  of  others  also  against  him.  Vendors  so  stipu- 
lating for  the  essentiality  of  time  in  their  favour,  ''cannot  fairly,"  said 
Vice-Chancellor  Knight  Bruce,  "complain  of  being  held  strictly  to  the 
conditions  themselves.  .  .  .  The  plaintiffs'  proposition  is  that  the  pur- 
chaser shall  be  held  by  a  cable,  and  the  vendors  by  a  skein  of  silk. '7/.;) 

§  721.  And  where  the  contract  contains  stipulations  in  favour  of  one 
party  and  not  of  the  other, — as,  for  instance,  an  option, — or  is  in  any- 
wise unilateral,  the  court,  if  it  does  not  consider  time  as  originally  of  the 
essence,  will,  as  we  shall  hereafter  see,  look  at  it  with  more  than  usual 
strictness.  (^) 

§  722.  (2)  Where  time  is  not  originally  of  the  essence  of  the  contract, 
and  any  unnecessary  delay  is  caused  by  one  party,  the  other  party  has  a 
r*mRn  ^'^S^^^  ^^  limit  a  reasonable  *time  within  which  the  contract  shall 
L  -I  be  perfected  by  the  other,  in  default  of  obedience  to  which  the 
court  will  not  enforce  specific  performance,  but  will  leave  the  parties  to 
their  legal  rights. (?/i) 

(e)  Sparks  v.  Liverpool  Water-works  Comp.any,  13  Ves.  428. 
(/)  OampbcU  v.  London  and  Brighton  llailwav  Companj',  5  Ha.  519. 
(g)  22  Beav.  533.  (A)  Coslake  v.  Till,  1  Russ.  376. 

(i)  Carter  v.  Dean  of  Ely,  7  Sim.  211. 

(k)  Seaton  v.  Mapp,  2  ColL  C.  C.  556,  564.  (/)  See  post,  |  733. 

(m)  Taylor  v.  ]5rown,  2  ]5eav.  180  ;  Benson  v.  Lamb,  9  Beav.  502  ;  Nokes  v.  Lord 
Kilmorey,  1  De  G.  &  Sm.  444. 


LAPSE    OF    TIME.  217 

§  723.  This  principle  is  of  somewhat  recent  introduction  :  in  a  case(??) 
before  Sir  John  Leach  in  1821,  he  did  nyt  consider  it  to  be  then  decided 
that  time  couUl  thus  be  made  essential  by  subsequent  notice ;  and  where 
clear  notice  had  been  given  that  a  purchaser  would  insist  on  completion 
bv  the  time  specified,  Lord  Erskine  had  previously  refused  to  consider 
time  as  of  moment  in  the  contract. (o)  But  this  beneficial  principle  is 
now  well  established. 

§  724.  It  is  not,  of  course,  possible  for  cither  party  arbitrarily  and 
suddenly  to  put  an  end  to  negotiations  as  to  title, (jj)  or  other  matters 
pending  between  the  parties.  The  time  specified  by  the  notice  must  be 
long  enough  for  the  proper  doing  of  the  things  required  to  be  done,(j) 
and  if  it  be  not  so,  the  notice  will  fail  in  engrafting  time  into  the  essence 
of  the  contract.  Thus,  in  one  case,(/')  six  weeks  being  a  less  time  than 
the  vendor  took  to  furnish  the  abstract,  was  held  to  be  an  unreasonably 
short  time  for  the  vendor  to  insist  on  the  purchaser's  completing,  and 
the  notice  was  therefore  inoperative;  and  in  another  case,  fourteen  days 
was  held  not  to  be  a  reasonable  time  within  which  to  require  the  plain- 
tiffs to  produce  a  deed  and  complete  the  title. (s) 

§  725.  But  where  a  vendor  has  previously  refused  to  remove  an  objec- 
tion, a  time  which  would  be  unreasonably  short  in  the  first  instance  for 
the  removal  of  it  may  then  become  a  reasonable  period,  after  which  the 
purchaser  may  treat  the  contract  as  rescinded. T^) 

*§  726.  Again,  where  a  notice  to  rescind  was  waived  in  case  r:^qiQn 
evidence  requisite  to  prove  the  title  was  produced  immediately :  L  J 
the  evidence  not  having  been  produced,  the  bill  was  dismissed. (») 

§  727.  And  the  nature  of  the  contract  rendering  expedition  obligatory, 
may  make  reasonable  a  notice  which  would  otherwise  be  too  short.  Thus, 
where  A.  agreed  to  grant  B.  a  mining  lease,  and  for  that  purpose  under- 
took to  buy  a  field  adjoining  his  own,  to  procure  an  assignment  of  a  term, 
and  do  other  acts  requiring  time,  and  nine  weeks  elapsed  from  the  con- 
tract without  any  communication  from  A.  to  B.  to  show  when  the  con- 
tract was  likely  to  be  completed,  and  B.  then  gave  A.  notice  to  complete 
within  one  calendar  mouth,  and  in  default  to  rescind  the  contract :  it  was 
held  that  the  nature  of  the  subject-matter  of  the  contract  rendered  expe- 
dition on  the  part  of  the  lessor  essential,  and  that  the  month's  notice  was 
reasonable. (y) 

§  728.  The  notice  to  be  given  thus  to  engraft  time  into  the  contract 
must  be  express,  distinct,  and  unequivocal:  thus,  a  notice  that  one  party 
would  consider  the  non-performance  by  a  certain  day  as  equivalent  to  a 
refusal  to  perfurm  the  contract,  was  held  not  to  amount  to  a  notice  that 
the  contract  would  then  be  considered  as  rescinded. (/r) 

§  729.  Where  the  engrafted  time  is  set  up  as  a  defence,  it  does  not 
appear  to  be  necessary  that  the  notice  should  have  been  in  writing ;  so 
that  for  this  purpose  statements  made  by  the  purchaser's  agent  at  the 

(n)  Reynolds  v.  Xclson,  6  Mad.  18.         (o)  Radcliffe  v.  Warrington,  12  Yes.  326. 

(p)  Taylor  v.  Brown,  ubi  sup.  (g)  Kinj?  v.  "Wilson,  6  Beav.  124. 

(r)  Pegg  V.  Wisden,  16  Beav.  239.  («)  Parkin  v.  Thorold,  10  Beav.  59. 

(t)  Nott  v.  Riccard,  22  Beav.  307. 

(k)  Stewart  v.  Smith,  V.  C.  16  Dec.  1824;  6. Ha.  222,  n. 

(y)  Macbryde  v.  Weekes,  22  Beav.  533.  («•)  Reynolds  v.  Xelson,  G  Mad.  18. 


218       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

time  of  signing  tlie  contract,  to  the  effect  that  time  was  essential,  have 
been  admitted  as  evidence  ;  though  it  seems  that  such  verbal  notice  would 
be  inadmissible  on  behalf  of  the  plaintiff. (x) 

r*qonn  §  ''^^-  (^)  "^^^^  court  of  chancery  was  at  one  time  inclined  to 
L  "  J  *neglect  all  consideration  of  time  in  the  specific  performance  of 
contracts  for  sale,  not  only  as  an  original  ingredient  in  them,  but  as 
affecting  them  by  way  of  Iaches.(^t/^  But  it  is  now  clearly  established, 
that  the  delay  of  either  party  in  not  performing  its  terms  on  his  part,  or 
in  not  prosecuting  his  right  to  the  interference  of  the  court  by  the  filing 
of  a  bill,  or,  lastly,  in  not  diligently  prosecuting  his  suit  when  insti- 
tuted,(2)  may  constitute  such  laches  as  will  disentitle  him  to  the  aid  of 
the  court,  and  so  amount,  for  the  purpose  of  specific  performance,  to  an 
abandonment  on  his  part  of  the  contract. 

§  731.  One  of  the  earliest  cases  tending  to  establish  this  principle 
was  Mackreth  v.  Marlarjfff)  before  Lord  Kenyon  :  Lord  Loughborough 
followed  it,  and  held  in  one  case  where  a  vendor  delivered  no  abstract  on 
or  before  the  day  for  completion,  nor  till  after  an  action  for  the  deposit, 
and  the  purchaser  had  demanded  back  his  deposit  at  the  date  for  com- 
pletion, that  there  was  evidence  of  an  abandonment  of  the  contract  by  the 
vendor. (?;)  These  cases  were  approved  by  Lord  Alvanley  :(c)  and  finally, 
the  doctrine  in  question  was  adopted  and  acted  on  by  Lord  Eldon :  thus, 
for  example,  in  one  instance  he  on  this  ground  discharged  a  purchaser 
under  a  decree,  error  having  been  shown  in  the  decree,  though  the  par- 
ties were  proceeding  to  rectify  it.(cZ) 

§  732,  The  doctrine  of  the  court  thus  established,  therefore,  is  that 
laches  on  the  part  of  the  plaintifi',  either  in  executing  his  part  of  the  con- 
tract or  in  applying  to  the  court,  will  debar  him  from  relief.     "  A  party 
cannot  call  upon  a  court  of  equity  for  specific  performance,"  said  Lord 
^  Alvanley,(e)  "unless   he  has   shown  himself  ready,  desirous, 

L  "^  J  *prompt,  and  eager;"  or,  to  use  the  language  of  Lord  Cran- 
worth,(/)  "specific  performance  is  relief  which  this  court  will  not  give, 
unless  in  cases  where  the  parties  seeking  it  come  as  promptly  as  the 
nature  of  the  case  will  permit. "(^) 

§  733.  Where  the  contract  is  in  anywise  unilateral,  as  for  instance,  in 
the  case  of  an  option  to  purchase,  a  right  of  renewal,  or  of  any  other 
condition  in  favour  of  one  party  arid  not  of  the  other,  then  any  delay  in 
the  party  in  whose  favour  the  contract  is  binding  is  looked  at  with 
especial  strictness. (/A     On  this  principle,  the  delay  of  a  purchaser  in 

(z)  Nokes  V.  Lord  Kilmorey,  1  De  G.  &  Sm.  444,  pcarticularly  458. 

(?y)  See  ante,  ?  711. 

(z)  Moore  v.  Blake,  1  Ball  &  B.  62.  (a)  1  Cox,  2.59. 

{h)  Lloyd  V.  Collett,  4  Bro.  C.  C.  409;  Harrington  v.  Wheeler,  4  Yes.  686. 

(c)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494. 

{(l)  Lechniere  v.  Brazier,  2  J.  &  W.  287;  Coster  v.  Turner,  1  Russ.  &  My.  311. 
See  also  Ciibitt  v.  Blake,  19  Beav.  454. 

(c)  In  Milvvard  v.  Earl  Thanet,  5  Ves,  720,  n. 

(/)  Li  Eads  V.  Williams,  4  De  G.  M.  &  G.  691. 

Iff)  Sec  also  Alley  v.  Deschamps,  13  Ves.  225  ;  Williams  v.  Williams,  17  Beav. 
213  ;  Firth  v.  Greenwood,  1  Jur.  N.  S.  866,  (Wood,  V.  C.) 

(h)  Allen  V.  Hilton,  1  Fonbl.  Eq.  432  ;  Brooke  v.  Garrod,  27  L.  J.  Ch.  226, 
(Wood,  V.  C.) 


LAPSE    OF    TIiME.  219 

deciding  ■whether  he  will  or  will  not  accept  the  title  is  an  injustice, 
because  the  purchaser  can  enforce  the  contract  against  the  vendor  whether 
the  title  be  good  or  bad,  whereas  the  vendor  can  only  do  so  in  case  of  a 
good  title.((') 

§  734-.  Acquiescence  in  the  breach  of  a  covenant  will  form  a  bar  to  its 
specific  performance  in  equity. (/i;) 

§  735.  In  many  of  the  cases  there  has  been  a  general  dilatoriness  in 
all  the  proceedings,  so  that  it  is  almost  impossible  to  state  briefly  the 
actual  amount  of  delay  which  has  been  considered  to  bar  the  plaintiff's 
right  to  relief:  but  some  notion  of  the  present  doctrine  of  the  court  ou 
this  point  will  be  gained  from  the  following  cases. 

§  730.  In  the  old  case  of  the  Marquis  of  Hertford  v.  Boore,(A  a  delay 
of  fourteen  months  was  not  considered  a  bar  to  the  plaintiff's  bill.  But 
in  the  recent  case  of  Eads  v.  Williams, («i)  a  delay  of  three  and  a  half  years 
was  considered  fatal  :  in  Southcomb  v.  The  Bishop  of  Exeter,(?A  a  delay 
from  the  17th  of  January,  1842,  to  the  30th  of  August,  *1843, 
was  held  to  have  the  same  effect:  and  in  Lord  James  Stuart  v.  L  "'"'J 
The  London  and  Northwestern  Railway  Company,^o)  Lord  Justice  Knight 
Bruce  seemed  to  think  that  a  delay  from  October,  1848,  to  July,  1850, 
must  be  fatal  to  such  a  bill. 

§  737.  And  where  one  party  to  the  contract  has  given  notice  to  the 
other  that  he  will  not  perform  it,  acquiescence  in  this  by  the  other  party, 
by  a  comparatively  brief  delay  in  enforcing  his  right,  will  be  a  bar :  so 
that  in  one  case(p)  two  years'  delay  in  filing  a  bill  after  such  notice,  and 
in  another  case((/)  one  year's  like  delay,  have  been  held  to  exclude  the 
intervention  of  the  court. 

§  738.  Where  the  contract  is  substantially  executed,  and  the  plaintiff 
is  in  possession  of  the  property,  and  has  got  the  equitable  estate,  so  that 
the  object  of  his  suit  is  only  to  clothe  himself  with  the  legal  estate,  time 
cither  will  not  run  at  all  as  laches  to  debar  the  plaintiff  from  his  rio-ht, 
or  it  will  be  looked  at  less  narrowly  by  the  court  j(r)  for  the  plaintiff  has 
not  been  sleeping  on  his  rights,  but  relying  on  his  equitable  title,  with- 
out thinking  it  necessary  to  have  his  legal  right  perfected.  Therefore, 
where  a  tenant  holds  under  an  agreement  for  a  lease,  pays  his  rent,  has 
possession  of  the  property,  and  the  enjoyment  of  all  the  benefits  given 
him  by  the  contract,  the  effluxion  of 'time  will  not  be  a  ground  for  resist- 
ing its  enforcement  :(.s)  and  so,  again,  where  there  was  an  agreement  for 
the  lease  of  a  shop  and  the  sale  of  the  stock,  and  the  stock  had  been  paid 
for,  the  plaintiff  had  been  put  into  possession  as  lessee,  and  the  rent  had 
been  *paid, — in  fact,  everything  had  been  done  but  the  execution  r:^q9QT 
of  the  lease,  which  the  defendant  had  refused  to  execute  on  a  L     "  -I 

(i)  Spurrier  v.  Hancock,  4  Ves.  667.  (A-)  Barret  v.  Blagravc,  6  Ves.  104. 

m  5  Yes.  719.  (m)  4  De  G.  M.  &  G.  674.  (n)  6  Ha.  213. 

(o)  1  De  G.  M.  &  G.  721 ;  and  see  also  Spurrier  v.  Hancock,  4  Ves.  667  ;  Har- 
rington V.  Wheeler,  4  Ves.  686 ;  Guest  v.  Homfraj,  5  Ves.  818  ;  Thomas  v.  Elack- 
man,  1  Coll.  C.  C.  301,  313.  (p)  Heaphy  v.  Hill,  2  S.  k  S.  29. 

(q)  Watson  v.  Reid,  1  R.  &  My.  236.  See  also  per  M.  R.  in  Parkin  v.  Thorold, 
16  Beav.  73. 

(r)  Per  Lord  Redesdale  in  Crofton  v.  Ormsbj,  2  Sch.  &  Lef.  604. 

(.5)  Clarke  v.  Moore,  1  Jon.  &  L.  723;  Sharp  v.  Milligan,  22  Beav.  606,  affirmed 
by  Lords  Justices. 


220      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ground  wliich  was  untenable, — specific  performance  of  the  lease  was 
granted,  notwithstanding  considerable  laches  on  the  part  of  the  plaintiff 
subsequent  to  the  defendant's  refusal,  but  therefore  without  costs. (^) 

§  739.  Nor  will  time  run  as  laches  pending  a  negotiation  between  the 
parties  to  the  contract,  even  though  it  may  be  carried  on  without  pre- 
judice to  a  notice  given  by  one  party  that  he  holds  the  contract  re- 
scinded.(«)  But  where  the  negotiation  is  about  a  point  which  is  not 
the  real  cause  of  the  delay,  its  pendency  will  not  prevent  the  effluxion 
of  time  operating  as  laches :  so  where  there  were  two  purchases,  and 
disputes  arose  about  the  title  and  a  valuation  incident  to  the  purchase, 
but  from  the  evidence  it  appeared  that  want  of  means  in  the  purchaser 
who  had  instituted  the  suit,  and  not  these  disputes,  was  the  real  cause 
of  delay,  the  Vice-Chancellor  Knight  Bruce,  though  after  some  hesita- 
tion, refused  specific  performance,  as  the  plaintiff  in  such  suits  must 
have  more  than  a  doubtful  title.  (iA 

§  740.  When  the  delay  arises  from  an  untenable  objection  taken  by 
one  party,  that  party  cannot  avail  himself  of  the  delay  caused  by  it,  as 
a  ground  for  the  non-performance  of  the  contract. (tc)  And  generally, 
whenever  the  delay  is  attributable  to  the  defendant,  he  will  not  be  al- 
lowed to  avail  himself  of  it  as  a  defence. (x) 

§  741.  The  fact  that  the  purchaser  has  allowed  the  deposit  to  remain 
r*R9<l"l  ^"^  ^'^^^  hands  of  the  vendor  from  the  time  *he  held  the  contract 
L  "^  J  to  be  rescinded  until  the  filing  of  the  bill,  has  been  decided  not 
to  affect  the  question  of  laches. (j/^ 

§  742.  And  so  also  continuing  in  possession,  if  under  an  arrangement 
to  that  effect,  will  not  affect  the  question. (s) 

§  743.  In  a  recent  casc,(«)  Sir  John  llomilly  was  of  opinion  that  time 
does  not  run  as  laches  in  the  case  of  land  taken  under  a  railway  act, 
until  the  time  during  which  the  company  had  the  power  to  make  the 
railway  ceased,  as  the  fact  whether  the  company  would  require  the  land 
or  not  could  not  be  ascertained  until  that  time  ;  but  this  view  was  not 
adopted  by  the  lords  justices,  who  seem  to  have  thought  that  time  would 
run  from  the  date  of  the  contract. 

§  744.  It  is  to  be  observed  that  a  mere  claim  by  words  though  con- 
tinual, unaccompanied  by  any  act  to  give  effect  to  them,  will  not  prevent 
time  operating  as  laches  against  the  party  making  the  claim,  nor  keep 
alive  a  right  which  would  otherwise  be  precluded. (i] 

§  745.  Objections  grounded  on  the  lapse  of  time  are  waived  by  a 

(I)  Burke  v.  Smyth,  3  Jon.  &  L.  193.  See  also  per  Lord  St.  Leonards  in  Ridg- 
way  V.  Wharton,  C  Ho.  Lords,  292. 

(u)  Southcomb  v.  Bishop  of  Exeter,  6  Ila.  213. 

(v)  Gee  V.  Pearse,  2  De  G.  &  S.  325. 

(w)  Monro  V.  Taylor,  3  M'N.  &  G.  TlS,  723. 

(z)  Morse  v.  Merest,  6  Mad.  2G  ;  Shrewsbury  and  Birmingham  Railway  Company 
V.  London  and  Northwestern  Railway  Company,  2  M'N.  &  G.  324,  355 ;  per  Lord 
St.  Leonards  in  Ridgway  v.  Wharton,  G  llo.  Lords,  292. 

(y)  Watson  v.  Reid,  1  R.  &  My.  23G ;  Southcomb  v.  Bishop  of  Exeter,  6  Ila.  213. 

(z)  Southcomb  v.  Bishop  of  Exeter,  ubi  sup. 

(a)  Lord  James  Stuart  v.  London  and  Northwestern  Railway  Company,  15  Beav. 
513;  S.  C.  1  De  G.  M.  &  G.  721. 

(i)  Clegg  V.  Edmondsou,  2G  L.  J.  Ch.  G73. 


LAPSE    OF    TIME.  221 

course  of  conduct  inconsistent  witli  tlie  intention  of  insisting  on  such  an 
objection  :  and  in  this  respect  it  is  immaterial  whether  time  were  origin- 
ally of  the  essence  or  subsequently  engrafted  on  the  contract.(c) 

§  746.  Therefore,  where  a  title  is  in  a  state  which  may  cause  delay, 
and  the  purchaser  goes  on  dealing  about  the  title  after  the  day  for  com- 
pletion, this  will  waive  his  right  to  insist  on  the  time.(c/)  So  the  ex- 
amination of  the  abstract  after  the  time  will  prevent  a  defendant  insist- 
ing on  time  as  essential,  for  he  had  no  right  to  look  into  the  abstract 
*if  he  meant  to  abandon  his  purchase. (f)  And  such  conduct  |-^„^_-. 
will  amount  to  a  waiver,  even  though  a  formal  notice  to  abandon  L  "^  J 
the  contract  may  have  been  given. (/)  So  again,  insisting  on  the  con- 
tract after  the  time  limited  for  completion, (f/)  and  writing  a  letter  ex- 
tending the  time  for  completion  of  the  contract,(/A  are  acts  respectively 
waiving  the  right  to  insist  on  that  time  as  essential.  But  where  a  pur- 
chaser protests  against  delay,  and  then  under  protest  deals  about  the  title, 
this  will  not,  it  seems,  amount  to  a  waiver.({) 

§  747.  So  as  to  time  for  payment :  where  an  assignor  of  a  lease  insisted 
on  a  forfeiture  of  the  assignment  by  reason  of  non-payment  of  part  of 
the  purchase-money  at  the  time  stipulated,  he  was  held  to  have  waived 
it  by  getting  the  assignee  to  pay  the  rent  to  the  superior  landlord,  that 
not  being  consistent  with  the  notion  that  the  agreement  was  at  an  end  :(k) 
in  another  case,(Z)  there  was  an  agreement  that,  if  the  residue  of  the 
purchase-money  was  not  paid  at  a  certain  day,  the  agreement  should  be 
void  :  it  was  not  paid,  but  the  vendor,  allowing  the  purchaser  to  retain 
possession  and  taking  from  him  a  warrant  of  attorney  to  confess  judg- 
ment in  ejectment,  was  held  to  have  waived  the  condition. 

§  748.  As  to  the  time  for  the  delivery  of  objections,  a  subsequent 
correspondence  as  to  title  was  in  one  case  held  to  work  a  waiver  :(m) 
and  a  similar  result  was  in  another  case  held  to  follow  from  the  subse- 
quent renewal  of  negotiation  as  to  price. («) 

§  749.  It  is,  perhaps,  scarcely  needful  to  remark,  that  a  waiver  as  to 
the  time  in  which  an  act  is  to  be  done,  is  *not  necessarily  in  any 
degree  a  waiver  of  the  act  itself  So  that  where  it  was  agreed  L  "^  J 
that  A.  should  repair  some  warehouses  by  the  1st  April,  and  that  B. 
should  then  take  a  lease  of  them,  and  the  repairs  were  not  done  by  the 
day  appointed,  but  B.  continued  to  deal  in  a  way  which  was  held  to 
amount  to  a  waiver  of  the  time  as  essential,  (if  by  the  contract  it  had 
ever  been  so,)  and  afterwards  and  before  a  lease  was  executed  the  ware- 
houses were  burnt  down  :  it  was  held  that  B.,  though  he  had  waived  the 
essentiality  of  time,  had  not  waived  the  condition  that  the  repairs  should 
be  eifected  prior  to  his  taking  a  lease,  and  consequently,  that  the  pro- 
posed lessor  A.,  and  not  the  proposed  lessee  B.,  must  bear  the  loss.(o) 

(c)  King  V.  Wilson,  6  Beav.  124.  (d)  Pincke  v.  Curteis,  4  Bro.  C.  C.  329. 

(f)  Seton  V.  Slade,  7  Ves.  265.  (/)  Hipwell  v.  Knight,  1  Y.  &  C.  Ex.  401, 

(y)  ^'egg  V.  Wisden,  IG  Bcav.  239. 

(//)  Parkin  .v.  Tliorold,  16  Beav.  59,  69.     See  also  "Wood  v.  Bernal,  19  Ves.  220. 

h)  Magennis  v.  Fallon,  2  Moll.  561,  576.     But  see  Sug.  Vend.  291. 

(A-)  Hudson  v.  Bartram,  3  Mad.  440.         (l)  Ex  parte  Gardner,  4  Y.  &  C.  Ex.  503. 

(m)  Cutts  v.  Thodey,  13  Sim.  206.         (n)  Eads  v.  Williams, 4  DeG.M.  &G.  674. 

(o)  Counter  v.  Macpherson,  5  Moo.  P.  C.  C.  83. 

December,  1858. — 15 


222       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  750.  The  question  whetlier  time  was  originally  of  the  essence,  and 
whether  it  has  since  been  waived,  is  one  of  evidence,  and  can  therefore 
be  disposed  of  only  on  the  hearing.(p) 


PART   IV. 
OF  THE  MODE  OF  EXERCISING  THE  JURISDICTION. 


[*327]  *CH  AFTER   I. 

OF   THE   INSTITUTION   OF   THE    SUIT. 

§  751.  The  most  usual  proceeding  to  obtain  the  specific  performance 
of  a  contract,  is  to  institute  a  suit  by  bill. 

§  752.  But  it  is  competent  to  a  person  seeking  the  interference  of 
equity  in  specific  performance,  to  proceed  in  certain  cases  by  claim  instead 
of  by  bill. 

§  753.  By  the  first  of  the  general  orders  of  the  22nd  April,  1850,  a 
claim  may  be  filed,  without  special  leave  of  the  court,  by  "  a  person 
entitled  to  the  specific  performance  of  an  agreement  for  the  sale  or  pur- 
chase of  any  property,  seeking  such  specific  performance."  In  the 
schedules  to  these  orders,  (A.  8  and  C.  10,)  are  contained  forms  of  claim 
and  of  order  of  reference  of  title  adapted  to  cases  of  specific  performance 
under  the  order  quoted.  From  the  terms  of  this  order,  it  follows  that 
special  leave  is  required  to  file  a  claim  for  the  specific  performance  of  an 
agreement  to  grant  a  lease. (a)  In  one  case,(&)  leave  was  given  to  file  a 
claim  for  the  specific  performance  of  a  parol  agreement  for  the  sale  of 
lands,  with  a  statement  of  acts  of  part  performance,  but  the  court  thought 
it  a  perilous  case  for  a  *claim.  Leave  was  held  not  to  be  neces- 
L  J  sary  to  file  a  claim  where,  from  the  title  having  been  accepted, 
no  reference  was  required,  but  the  dispute  arose  as  to  a  right  of  road.(c) 

§  754.  In  a  recent  case((?)  before  Sir  John  Stuart,  a  plaintiff  filed  a 
claim  for  the  specific  performance  of  an  agreement,  involving  complicated 
arrangements  and  considerations  which  the  court  considered  it  impossible 
to  determine,  as  the  case  was  presented  by  the  claim,  and  without  the 
assistance  of  an  answer  by  the  defendants  :  the  learned  judge,  therefore, 
dismissed  the  claim  without  costs,  and  without  prejudice  to  the  plaintifi"'s 
right  to  file  a  bill,  and  at  the  same  time  expressed  his  dissatisfaction  with 
the  way  of  proceeding  by  claim. 

(jo)  Levy  v.  Lindo,  3  Mer.  81. 

(a)  Keeble  v.  Dennish,  14  Jur.  847  ;  Scargill  v.  Hurry,  id. ;  Anon.  9  Ha.  Appx.  1 1 . 

b)  Barnley  v.  Eastern  Counties  Railway  Company,  5  De  G.  &  S.  314. 

c)  Hemming  v.  Mayo,  14  Jur.  847. 
(/)  Pwawlings  v.  Dalgleisb,  1  Sm.  &  Gif,  76. 


INJUNCTIONS.  223 

*CH AFTER    II.  [*329] 

OF   INJUNCTIONS. 

§  755.  The  jurisdiction  of  courts  of  equity  in  injunction  is  connected 
•with  the  specific  performance  of  contracts  in  two  ways  :  (1)  sometimes 
the  injunction  is  the  manner  in  which  the  court  specifically  performs  the 
contract  itself,  (2)  and  sometimes  the  injunction  is  merely  incident  and 
ancillary  to  the  performance. 

§  756.  (1)  It  is  evident  that  where  there  is  a  contract  not  to  do  a  thing, 
which  contract  is  capable  of  being  enforced  in  equity,  it  may  be,  and 
naturally  is  enforced  by  the  court,  by  means  of  an  injunction  restraining 
the  doing  of  the  act.(«) 

§  757.  Therefore  where  articles  were  executed  between  the  plaintiffs, 
who  resided  very  near  the  church  of  Hammersmith,  and  the  parson, 
churchwardens,  overseers,  and  some  of  the  other  inhabitants  of  the  parish, 
by  which  the  plaintiffs  covenanted  to  erect  a  new  cupola,  clock,  and  bell 
to  the  church,  and  the  other  parties  covenanted  that  a  bell  which  had 
been  daily  rung  at  five  o'clock  in  the  morning,  to  the  great  annoyance 
of  the  plaintiffs,  should  not  be  rung  during  the  lives  of  the  plaintiffs  or 
the  survivor  of  them ;  the  plaintiffs  performed  their  part  of  the  agree- 
ment, but  the  bell  after  about  two  years  was  rung  again  :  the  agreement 
was  specifically  enforced  against  the  parish  authorities  by  means  of  an 
injunction. (/>)  And  again,  where  the  proprietors  *of  Yauxhall  j-^^^^.. 
Gardens  had  granted  a  lease  of  an  adjoining  house,  with  an  L  J 
express  covenant  not  to  carry  on  the  trade  of  a  retailer  of  wine,  and  cer- 
tain other  trades,  upon  penalty  of  forfeiture  of  the  lease,  and  payment  of 
£50  a  month  to  the  proprietors  of  the  Gardens,  and  the  lessees  made  an 
underlease  to  the  defendant  :  the  court  granted  an  injunction  to  restrain 
the  defendant  from  carrying  on  the  business,  the  lord  chancellor  remark- 
ing, "  it  is  in  the  nature  of  a  specific  performance.  I  think  you  will 
find  many  cases.  The  breach  of  the  agreement  may  consist  in  repeated 
acts."(c) 

§  758.  Again,  where  the  commissioners  of  woods  and  forests  granted 
a  piece  of  land  to  the  plaintiffs  for  the  purpose  of  erecting  a  club-house, 
and  agreed  that  a  piece  of  land  adjoining  to  that  leased  should  be  laid 
out  as  a  garden,  and  not  be  built  on,  and  the  commissioners  subsequently 
permitted  certain  persons  to  erect  stables  on  this  piece  of  ground  :  the 
court  specifically  performed  the  stipulation  in  question,  by  enjoining  the 
defendants  from  the  prosecution  of  such  buildings,  or  the  erection  of  any 
others,  and  from  permitting  such  parts  of  the  buildings  as  were  already 
erected  from  remaining  thereon. (r?)  And  so  where  a  partner  abstracted 
a  partnership  book  from  the  counting-house,  contrary  to  a  covenant  in 

(a)  Per  Lord  St.  Leonards  in  Lumley  v.  Wagner,  1  De  G.  M.  &  G.  616. 
(6)  Martin  v.  Nutkin,  2  P.  Wms.  266. 

(c)  Barret  v.  Blagrave.  5  Yes.  555 ;  S.  C.  6  Ves.  104:  cf.  Newberrj  v.  James.  2 
Mer.  446;  Williams  v.  Williams,  3  Mer.  157. 
(rf)  Rankin  v.  Huskisson,  4  Sinj-  13. 


224       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

the  deed  of  partnership,  specific  performance  of  this  was  enforced  by 
means  of  an  injunction. (e) 

§  759.  And  so  where,  in  consideration  of  a  sum  of  money,  A.  cove- 
nanted with  B.  not  to  act  on  the  stage  within  a  certain  district,  the  court 
enforced  the  covenant  by  injunction. (/] 

f-*-->qn  §760.  In  cases  of  covenants  not  to  carry  on  trade  within  *par- 
L  J  ticular  districts,  the  covenant  when  enforced  by  the  court  is  so 
by  means  of  injunction.(^) 

§  761.  Where  the  acts  complained  of  are  frequent,  and  the  court  can- 
not ascertain  whether  there  has  in  each  case  been  a  breach  without  an 
action  at  law,  the  court  will  not  interfere  by  injunction, — as,  for  example, 
in  the  case  of  a  covenant  not  to  sell  water  from  a  certain  well  to  the 
plaintiff's  injury,  for  the  court  would  have  to  try  in  each  instance 
v.-hether  the  act  of  selling  water  was  to  the  prejudice  of  the  plaintiffs. (7«) 

§  762.  One  mode  in  which  specific  performance  by  means  of  injunc- 
tion has  sometimes  been  sought,  is  in  respect  of  agreements  not  to  apply 
to  parliament.  For  it  is  perfectly  clear  that  courts  of  equity  have 
power,  upon  a  proper  case  being  made  out,  to  enjoin  a  person  from  peti- 
tioning parliament;  for  the  court  merely  acts  i  )i  j^e  mo  nam,  and  does 
not  therefore  in  any  way  interfere  with  the  proceedings  of  parliament. (i) 

§  763.  What  is  a  proper  case  for  this  interference  of  the  court  is  a 
question  of  some  difiiculty  The  fact  that  the  intended  application  to 
parliament  will  abrogate  existing  rights  and  create  new  ones  can  give  no 
right  to  such  an  injunction,  for  that  would  be  to  restrain  parliamentary 
interference  in  all  such  cases. (/i-)  Nor  will  the  court  interfere,  even 
where  for  the  protection  of  private  interests  an  agreement  not  to  apply 
to  parliament  has  been  entered  into,  provided  the  party  making  the 
application  to  the  legislature  may  urge  it  upon  grounds  of  public  policy, 
of  which  *parliament  can  judge,  but  a  court  of  equity  cannot. (Z) 
L  ""J  This  seems  to  apply  to  all  cases  in  which  the  application  is  in 
soliciting  a  bill,  for  in  all  such  cases  grounds  of  a  public  nature  may  be 
urged.  The  only  case  therefore  in  which  the  court  would  interfere, 
appears  to  be  where  the  applicant  would  oppose  a  bill  alone  on  grounds 
of  his  private  interest. (m) 

§  764.  In  a  case,  therefore,  where  the  defendant  company  agreed  with 
the  plaintiff  company  not  to  make  any  line  connecting  their  respective 

(e)  Taylor  v.  Davis,  3  Beav.  388,  n. 

(f)  Anon,  mentioned  by  V.  C.  of  England  in  Kimberley  v.  Jennings,  6  Sim. 
351  ;Lumley  v.  Wagner,  1  De  G.  M.  &  G.  604  ;  ante,  §  557. 

(ff)  Williams  v.  Williams,  2  Sw.  253.  See  also  Shackle  v.  Baker,  14  Ves.  468  ; 
Crutwell  V.  Lye,  17  Ves.  335  ;  Harrison  v.  Gardner,  2  Mad.  198. 

(A)  Collins  V.  Plumb,  16  Ves.  454. 

(/)  Ware  v.  Grand  Junction  Waterworks  Company,  2  Russ.  &  My.  470,  483; 
Ileathcote  v.  North  Staffordshire  Railway  Company,  2  M'N.  &  G.  100;  Lancaster 
and  Carlisle  Railway  Company  v.  Northwestern  Railway  Company,  2  K.  &  J.  293. 
See  also  Attorney-General  v.  Manchester  and  Leeds  Railway  Company,  1  Rail.  C. 
436. 

(k)  Ileathcote  v.  North  Staffordshire  Railway  Company,  2  M'N.  &  G.  100. 

(I)  Lancaster  and  Carlisle  Railway  Company  v.  Northwestern  Railway  Company, 
2  K.  &  J.  293. 

(m)  S.  C.  and  Stockton  and  Hartlepool  Railway  Company  v.  Leeds  and  Thirsk 
Railway  Company,  2  Ph.  666. 


INJUNCTIONS.  225 

railways,  except  one  which  had  been  already  applied  for  by  the  defen- 
dants, and  in  consideration  of  this  the  plaintifl's  agreed  to  support,  instead 
of  opposing  (as  they  had  previously  done)  the  application  of  the  defen- 
dants for  the  last-mentioned  line,  and  the  plaintiffs  performed  their  part 
of  the  agreement,  and  the  defendants'  application  was  successful  :  the 
court  nevertheless  refused  to  restrain  the  defendants  from  applying  to 
parliament  in  contravention  of  their  agreement,  considering  that  such  au 
application,  if  successful,  would  be  so  on  public  grounds,  of  which  the 
court  could  not  judge,  and  that  if  rejected,  the  breach  of  the  agreement, 
if  a  legal  one,  might  be  compensated  for  in  damages. (jA 

§  705.  In  the  cases  already  considered  the  agreements  were  negative  : 
but  where  the  contract  is  in  form  affirmative,  the  court  has  sometimes 
given  effect  to  it  by  an  injunction  against  the  opposite. 

§  766.  Thus,  where  the  defendant  had  leased  mills  to  the  plaintiff, 
and  had  covenanted  for  the  supply  of  water  to  them  from  certain  canals 
and  reservoirs,  and  the  lessee  brought  his  suit  to  enforce  the  doing  of 
repairs  by  the  defendant  to  enable  him  to  enjoy  the  water :  Lord  Eldon 
doubting  about  affirmatively  decreeing  repairs,  arrived  at  the  end  sought 
*by  the  bill,  by  granting  an  injunction  against  hindering  the  r^ooq-] 
plaintiff's  enjoyment  of  his  rights,  by  keeping  the  canal  and  L  '  J 
works  out  of  repair. M  And  in  another  case,(^j)  his  lordship  carried 
into  effect  an  agreement  to  grant  a  right  of  way  by  granting  an  injunc- 
tion to  restrain  the  removal  of  the  materials  and  the  destruction  of  the  way. 

§  707.  In  the  case  of  Rankin  v.  IIuskisson,(5')  already  referred  to, 
where  certain  buildings  had  been  begun  in  contravention  of  an  asrree- 
ment  to  leave  certain  land  as  a  garden,  the  injunction  was  not  merely 
against  building  for  the  future,  but  also  against  permitting  such  build- 
ings as  had  been  already  erected  from  continuing  on  the  ground.  And 
where  the  defendant  had  covenanted  to  leave  sufficient  barriers  against 
adjoining  collieries,  and  had  not  done  so,  an  injunction  was  granted  by 
Lord  Langdale,  restraining  the  defendant,  amongst  other  things,  from 
permitting  the  communication  to  continue  open.(r) 

§  768.  The  practice  of  granting  these  mandatory  injunctions,  which 
are  not  confined  to  cases  of  contract,(s)  has  been  disapproved  of  by  Lord 
Brougham,  as  being  a  roundabout  mode  of  attaining  the  object,  which 
seems  to  cast  a  doubt  upon  the  jurisdiction  itself  (A  It  is  to  be  observed 
that  this  species  of  relief  by  injunction  will  be  extended  only  so  far  as 
the  plaintiff,  at  the  time  and  on  the  evidence,  establishes  a  ease  for  pro- 
tection ;  so  that  though  the  plaintiff  may  establish  that  necessity  as  to 
certain  breaches,  the  court  will  not  extend  the  injunction  so  as  to  restrain 
all  acts  in  breach  of  the  covenants  of  the  lease. (?/)     In  this  respect  the 

(n)  Lancaster  and  Carlisle  Railway  Company  v.  Northwestern  Raihv.ayCompanv, 
2  K.  &  J.  293. 

(o)  Lane  v.  Newdigate,  10  Ves.  192.  (p)  Newmarch  v.  Brandling,  3  Sw.  99. 

(q)  4  Sim.  13.     See  also  Whittaker  v.  Howe,  3  Beav.  383. 

(r)  Earl  of  Mexborough  v.  Bower,  7  Beav.  127. 

(«)  For  this  class  of  injunctions  generally,  see  Drewry  on  Injunctions,  part  ii. 
ch.  6,  s.  8,  et  seq. 

(t)  See  Blakemore  V.  Glamorganshire  Canal  Navigation,  1  Mv.  &  K.  151,  184; 
Milligan  v.  .Mitchell.  1  My.  &  K.  44G. 

(«)  Earl  of  Mexborough  v.  Bower,  7  Beav.  127. 


226       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

|-^.qo  1-1  *jurisdiction  in  question  is  evidently  distinct  in  character  from 
L         J  specific  performance. 

§  769.  (2)  The  jurisdiction  of  the  court  in  injunction  is  often  ancil- 
lary to  that  in  specific  performance,  for  the  purpose  of  preventing  the 
defendant  making  a  use  of  the  legal  interest  vested  in  him  in  a  way 
inconsistent  with  the  equity  claimed  by  the  plaintiff,  and  from  embar- 
rassing the  plaintiif  by  dealing  with  the  property  during  the  pendency  of 
the  suit.  <'  The  court  will  in  many  cases  interfere  and  preserve  property 
in  statu  quo  during  the  pendency  of  a  suit,  in  which  the  rights  to  it  are 
to  be  decided,  and  that  without  expressing,  and  often  without  having  the 
means  of  fofming  any  opinion  as  to  such  rights. 'Vv)  In  the  class  of 
cases  now  to  be  considered,  the  injunction  is  therefore  granted  on  the 
plaintiff's  showing  ?i prima  facie  case  for  specific  performance. (uA  And 
so  it  is  not  necessary,  in  order  to  continue  the  injunction,  that  it  should 
be  clear  that  the  plaintiff  will  succeed  at  the  hearing;  it  is  suflBcient  if 
there  is  ground  for  supposing  that  relief  may  be  given. (.^:^  For  on  this 
motion  the  court  will  not  decide  delicate  points,(^)  nor  allow  it  to  be 
resisted  on  points,  such  as  delay,  which  can  only  be  decided  at  the 
hearing.(2) 

§  770.  Accordingly,  where  a  lessor  was  sued  by  a  lessee  for  the  speci- 
fic performance  of  an  agreement  to  grant  a  lease,  he  was  restrained  from 
bringing  an  ejectment  during  the  suit. (a)  In  another  case,  the  plaintiff 
obtained  an  injunction  to  restrain  the  vendor  from  conveying  away  the 
legal  estate,  which  might  compel  the  plaintiff  to  make  some  other  person 
r*qo^-i  ^  P^i'*'X  *<^  ^^^^  suit. (J)  In  another  case,  an  injunction  *to  restrain 
L  -la  sale  of  the  estate  as  to  which  specific  performance  was  sought, 
was  granted  on  certificate  of  the  bill  having  been  filed  and  affidavit. (c) 
And  in  another  case,  an  injunction  was  granted  to  restrain  a  purchaser, 
who  had  got  into  possession,  from  cutting  timber  on  the  estate. ((7) 

§  771.  Injunctions  are  also  granted  to  restrain  actions  for  the  deposit 
upon  its  being  paid  into  court,(<')  or  to  restrain  actions  for  damages  for 
delay  in  completion,  on  the  principle  that  where  the  court  entertains 
jurisdiction,  it  will  not  permit  an  action  at  law  to  proceed  in  respect  of 
the  same  subject-matter. (/) 

§  772.  The  question  whether  in  a  suit  for  the  specific  performance  of 
an  agreement  for  a  separation  deed  between  husband  and  wife,  a  court  of 
equity  will  interfere  by  injunction  to  restrain  a  suit  for  the  restitution  of 
conjugal  rights,  as  incident  to  the  main  object  of  the  suit  in  equity,  can 
hardly  be  said  to  be  determined,  though  it  has  been  twice  discussed  by 

(r)  Per  Lord  Cottenham  in  Great  Western  Railway  Company  v.  Birmingham 
and  Oxford  Junction  Railway  Company,  2  Phil.  602. 

(iv)  Powell  V.  Lloyd,  1  Y.  &  J.  427. 

{x)  Hudson  V.  Bartram,  3  Mad.  440  ;  Attwood  v.  Barbara,  2  Russ.  186. 

(y)  Price  v.  Assheton,  1  Y.  &  C.  Ex!  82.  {z)  Levy  v.  Lindo,  3  Mer.  81. 

[a)  Boardman  v.  Mostyn,  6  Ves.  467  ;  Buckland  v.  Hall,  8  Ves.  92  ;  Attwood  v. 
Barham,  2  Russ.  186. 

{!,)  Echliffv.  Baldwin,  16  Ves.  267. 

(e)  Curtis  v.  Marquis  of  Buckingham,  3  V.  &  B.  168  ;  Spiller  r.  Spiller,  3  Sw.  556. 

(f/)  Crockford  v.  Alexander,  15  Ves.  138. 

(e)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494. 

(/)  Duke  of  Beaufort  v.  Glynn,  3  Sra.  &  Gif.  213,  226. 


AVRIT    OF    NE    EXEAT.  227 

the  house  of  lords  iu  the  case  of  Wilson  v.  Wilson,(</)  opposite  opinions 
having  been  expressed  on  the  point  by  the  learned  lords  by  whom  the 
case  was  decided. 

§  773.  The  court  will,  in  some  cases,  restrain  third  persons,  whose 
rights  are  independent  of  the  contract,  acting  in  a  manner  which  would 
prejudice  the  plaintiff  iu  respect  of  the  property.  So  where  after  an 
asreement  for  the  Scale  of  an  advowson  the  incumbent  died,  and  a  bill 
was  filed  against  the  vendor  and  the  bishop,  the  court  restrained  the 
vendor  from  presenting,  and  the  bishop  from  instituting,  or  in  case  of  a 
lapse  taking  place  pending  the  suit,  from  collating  to  the  living  any  clerk 
not  nominated  by  the  plain tiff.r/() 

§  774.  In  this  as  in  all  other  cases  of  ex  'parte  injunctions,  r:(:qqpT 
*the  court  will  grant  them  with  great  caution.  In  one  case,(A  L  -I 
Lord  Eldon  said,  "  I  wish  it  to  be  understood  as  my  opinion,  that,  in 
general,  on  a  bill  for  the  specific  performance  of  an  agreement  to  sell,  the 
plaintiff  is  not  entitled  to  restrain  the  owner  from  dealing  with  his 
property :  a  different  doctrine  would  operate  to  control  the  rights  of 
ownership,  although  the  agreement  was  such  as  could  not  be  performed :" 
but  he  granted  an  injunction  under  the  circumstances  of  that  case, 
restraining  the  vendors  of  certain  copyhold  property,  from  surrendering 
it  to  any  other  persons  than  the  plaintiffs,  who  were  in  possession  and 
had  paid  part  of  the  purchase-money.  In  Turner  v.  Wright,(7i-)  Lord 
Langdale  refused  a  motion  for  an  injunction  to  restrain  a  vendor  from 
letting  the  estate,  and  from  selling  and  conveying  the  same  except  to  the 
plaintiff,  on  the  ground  that  a  purchaser ^je;uZeH^e  I'ltc  would  take  subject 
to  the  rights  of  the  plaintiflf. 


*CHAPTEIl    III.  [*337] 

ox   THE  WRIT  OF  NE  EXEAT. 

§  775.  In  some  cases  a  writ  of  nc  exeat  is  issued  in  suits  for  specific 
performance ;  but  only  in  cases  where  it  appears  that  there  is  no  reason- 
able doubt  that  the  agreement  under  which  the  money  is  payable  is  one 
of  which  the  plaintiflf  is  entitled  to  specific  performance. (a) 

§  776.  It  may  issue  where  there  has  been  a  decree  for  payment  of  the 
purchase-money,  even  though  by  the  decree  that  was  made  subject  to  a 
deduction  for  compensation  which  had  not  been  ascertained. (/>) 

§  777.  It  has  been  held  that  this  writ  cannot  be  granted  unless  prayed 

(<7)  1  Ho.  Lords,  538;  S.  C.  5  Ho.  Lords,  40. 

(A)  Nicholson  v.  Knapp,  9  Sim.  326.  (/)  Spillcr  v.  Spiller,  3  Sw.  556. 

\k)  4  Beav.  40. 

(a)  Raynes  v.  Wyse,  2  Mer.  472 ;  Blaydcs  v.  Calvert,  2  J.  &  "W.  211 ;  Jenkins  v. 
Parkinson,  2  My.  &  K.  5  ;  .Morris  v.  M'Xeil,  2  Russ.  004. 
(6)  Boehm  v.  Wood,  T.  &  R.  332. 


228       FRY    ox    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ia  the  bill ;  and  that  where  this  has  not  been  the  case,  and  the  writ 
becomes  necessary  in  the  course  of  the  proceedings,  a  supplemental  bill 
should  be  filed  stating  the  facts,  and  praying  the  writ.M 


[*338]  *CHAPTER  IV. 

OF  RELIEF  SUBSEQUENT  TO  THE  DECREE. 

§  778,  The  Court  of  Chancery  having  once  had  jurisdiction  in  a  suit 
over  the  subject-matter  of  it,  will  not,  except  by  its  permission,  allow 
resort  to  any  other  forum  in  respect  of  that  subject-matter,  either  when 
the  proceedings  are  pending  in  the  court  or  after  decree,  except  in  cases 
where  the  right  to  sue  at  law  arises  on  instruments  executed  under  the 
decree. (f?)  But  where  the  decree  has  been  entirely  executed  and  the 
cause  thus  out  of  court,  any  relief  sought  in  equity  can  only  be  granted 
on  a  new  bill.(e) 

§  779.  On  the  general  principle  above  stated,  the  court,  after  a  decree 
for  specific  performance,  restrained  the  defendant  in  equity  from  bringing 
an  action  against  the  plaintiff  in  equity  for  damages  in  respect  of  the 
non-completion  of  the  contract  within  the  specified  time.(/)  And  so 
where  the  defendant  had  agreed  to  convey  to  the  plaintiff  certain  lands 
adjoining  a  stream,  and  the  plaintiff  had  agreed  to  erect  a  bridge  across 
the  stream  :  the  plaintiff  had  obtained  a  decree  for  specific  performance, 
and  a  reference  was  directed  to  the  master  to  settle  a  conveyance,  and 
after  the  decree,  and  pending  the  proceedings  before  the  master,  the 
defendant  brought  an  action  against  the  plaintiff  for  damages  *for 
L  "^  -I  the  non-erection  of  the  bridge  by  him  :  the  plaintiff  filed  a  sup- 
plemental bill,  praying  an  injunction  to  restrain  the  defendant  from  pro- 
ceeding in  the  action,  to  the  prayer  of  which  the  court  acceded. ((7) 

§  780.  The  same  principle  was  strongly  enforced  in  the  recent  case  of 
Prothero  v.  Phelps,(/i)  before  the  lords  justices.  There  Phelps  had 
originally  obtained  a  decree  against  Prothero  which  was  in  effect  for  spe- 
cific performance  of  an  agreement  between  them  of  a  complicated  cha- 
racter, for  the  assignment  of  certain  leasehold  property  by  Phelps  to  Pro- 
thero. Phelps  subsequently  began  an  action  at  law  against  Prothero  for 
alleged  breaches  of  the  agreement  in  question,  by  which  he  alleged  that  he 
had  been  prevented  from  attending  to  his  lawful  affairs,  and  injured  in 
his  credit  and  reputation.  To  this  action  Prothero  pleaded  on  equitable 
grounds  the  proceedings  in  chancery,  which  plea  was  overruled  :  he  then 
filed  a  supplemental  bill,  praying  for  an  injunction  to  restrain  the  action  ; 
the  lords  justices  held  that  the  court  having  jurisdiction  of  the  subject- 

(c)  Sharp  v.  Taylor,  11  Sim.  50.     But  see  Burned  v.  Laing,  13  Sim.  255. 

(d)  Prothero  v.  Phelps,  25  L.  J.  Ch.  105,  (L.  JJ.);  Bell  v.  O'Reilly,  2  Sch.  &  Lef. 
430  ;  Humphreys  v.  Horae,  3  Ila.  276.  See  also  Small  v.  Attwood,  3  Y.  &  C.  Ex. 
105. 

(e)  Ford  v.  Compton,  1  Cox,  296.         (/)  Reynolds  v.  Nelson,  6  Mad.  290. 
(y)  Frank  v.  Basnett,  2  lly,  &  K.  G18.  {h)  25  L.  J.  Ch.  105. 


COXDITIONS    OF    SALE    AND    PARTICULARS.  229 

matter,  the  plaintiff  at  law  could  not  proceed  without  the  permission  of 
the  court :  that  he  ought  to  have  submitted  his  claim  for  damages  to  the 
court  of  equity  which  was  competent  to  ascertain  them  :  and  they  there- 
fore directed  an  inquiry  as  to  such  damages,  and  restrained  the  action  at 
law. 

§  781.  Another  species  of  relief  after  decree  is  to  be  found  in  a  case,(«) 
where,  after  a  decree  for  specific  performance  against  a  purchaser,  the 
defendant  made  default  in  payment  of  the  purchase-money,  and  it  was 
determined  that  the  vendor  might  on  motion  rescind  the  contract.  In 
such  cases  the  court  will,  it  seems,  appoint  a  future  day  before  which 
payment  must  be  made,  or  the  contract  will  be  rescinded. 


PART   Y. 

OF  INCIDENTAL  MATTERS. 


*CH  AFTER    I.  p340] 

OF   CONDITIONS   OF    SALE   AND   PARTICULARS. 

§  782.  The  conditions  of  sale  subject  to  which  property  is  sold,  consti- 
tute part  of  the  contract.  Particular  conditions  of  sale  are  considered  in 
seVeral  other  parts  of  these  pages. (a)  But  it  will  be  desirable  here  briefly 
to  state  the  general  principles  upon  which  the  court  acts  in  construing 
conditions. 

§  783.  It  is  to  be  observed,  in  the  first  place,  that  the  circumstances 
connected  with  the  title  and  character  of  the  property  are,  of  course,  in 
the  knowledge  of  the  vendor  rather  than  of  the  purchaser;  and,  secondly, 
that  the  legal  right  of  a  purchaser  is,  independently  of  stipulation,  to 
have  a  good  title  and  an  estate  free  from  all  incumbrances ;  and,  there- 
fore, that  conditions  tending  to  give  the  purchaser  less  than  this  are  in 
restraint  of  a  common  law  right. 

§  784.  Proceeding  on  these  principles,  the  courts  have  held  that  it  is 
incumbent  on  the  vendor  to  express  himself  with  reasonable  clearness, 
and  in  the  case  of  sales  by  auction,  so  to  state  his  plans,  particulars,  and 
conditions  of  sale  as  to  convey  clear  information  to  the  class  of  persons 
who  ordinarily  frequent  auctions,  (i)  If  the  vendor  uses  *terms  p:co_ii-i 
reasonably  capable  of  misconstruction,  or  ambiguous  words,  the  L  J 
purchaser  is  not  bound  to  take  on  himself  the  peril  of  ascertaining  the 
true  meaning  of  the  statement, (c)  but  may  generally  construe  it  in  the 

(?)  Foligno  r.  Martin,  16  Beav.  586.  (a)  See  also  Sugd.  Vend.  ch.  i.  s.  2. 

(b)  Gibson  v.  d'Este,  2  Y.  &  C.  C.  C.  542,  558,  559  :  Djkcs  v.  Blake,  4  Bing.  X. 
C.  463,  476. 

(c)  Martin  v.  Cotter,  3  Jon.  &  Lat.  496;  Greaves  v.  Wilson,  4  Jur.  N.  S.  271. 


230    FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

manner  most  advantae;eous  to  himself  :((Z)  and  the  court  will  be  very 
unwilling,  even  on  exceptions,  to  hold  a  purchaser  to  his  bargain. (e) 

§  785.  So  where  there  was  an  ambiguity  as  to  which  of  two  leases 
was  referred  to,  the  purchaser's  construction  was  admitted  by  the  court, 
and  the  bill  dismissed  :(/)  so  a  condition  that  no  title  should  be  called 
for  prior  to  the  lease  was  not  held  so  explicit  as  to  preclude  inquiry  into 
dealings  with  the  contract  for  the  lease  which  had  taken  place  prior  to 
its  being  granted  :(g^  and  where  a  vendor  selling  a  reversionary  estate 
stipulated  that  a  statement  in  a  deed  of  1836  that  a  life  annuity  had  not 
been  paid  for  eight  years,  and  a  declaration  by  the  vendor  that  no  claim 
had  been  made  on  him  since  1841,  and  that  he  believed  the  annuity 
had  not  been  claimed  for  the  last  twenty  years,  should  be  conclusive 
evidence  that  the  annuity  had  determined  :  and  it  appeared  that  the 
annuity  was  granted  by  a  person  entitled  only  in  reversion,  and  that  it 
was  granted  for  the  life  of  the  survivor  of  four  persons,  it  was  held  that 
the  description  of  it  as  a  life  annuity  was  likely  to  lead  to  the  belief  that 
the  annuity  was  for  one  life  only,  and  that  the  omission  to  state  the  facts 
disentitled  the  vendor  to  specific  performance. (7i)  And  so,  again,  where 
property  sold  was  described  as  subject  to  articles  of  agreement  bearing 
date  1804,  for  a  lease  for  four  lives  and  one  year,  and  in  fact  the  terms 
of  the  agreement  were  such  that  the  lives  were  not  named  until  1845, 
r*"^!'^!  this  was  considered  so  ambiguous  *as  to  amount  to  an  objection 
L       ""J  to  the  performance  of  the  agreement. (/) 

§  786.  The  inclination  of  the  courts  to  construe  conditions  of  sale 
strictly  is  shown  by  many  other  cases,^/.;)  but,  perhaps,  it  is  not  more 
strongly  illustrated  by  any  case  than  a  recent  one(Z)  at  the  rolls,  where, 
on  a  sale  of  leaseholds,  the  conditions  stipulated  that  possession  should 
be  deemed  conclusive  evidence  of  the  due  performance,  or  sufl&cient 
waiver  of  any  breach  in  the  covenants  of  the  lease  up  to  the  completion 
of  the  sale  :  the  master  of  the  rolls  held  that  it  covered  all  breaches  up 
to  the  date  of  the  contract,  but  not  a  breach  between  the  contract  and 
completion  for  which  the  lessor  was  entitled  to  enter,  and  that  notwith- 
standing the  express  words  "  up  to  the  completion  of  the  sale." 

§  787.  The  court  construing  conditions  thus  strictly,  will  not  by  im- 
plication extend  the  terms  of  one  condition  so  as  to  enlarge  another 
beyond  what  it  actually  expresses.  In  the  case  of  Southby  v.  Hutt,(m) 
the  interpretation  of  conditions  in  this  respect  was  fully  considered. 
There,  by  the  conditions  of  sale,  the  vendor  agreed  to  deliver  an  abstract 
and  deduce  a  good  title,  except  as  to  part  of  the  estate  acquired  under 

(d)  Seaton  v.  Mapp,  2  Coll.  C.  C.  556. 

(e)  Taylor  v.  Martindale,  1  Y.  &  C.  C.  C.  658. 
(/)  Hcaton  v.  Mapp,  2  Coll.  C.  C.  556. 

(r/)  Rhodes  V.  Ihbetson,  4  De  G.  M.  &  G.  787. 

(h)  Drysdale  v.  Mace,  2  Sm.  &  Gif.  225,  affirmed  5  De  G.  M.  &  G.  103. 

(?)  Martin  v.  Cotter,  3  Jon.  &  J.  496. 

(k)  Southby  v.  Ilutt,  2  My.  &  Cr.  207 ;  Symonds  v.  James,  1  Y.  &  C.  C.  C.  487 ; 
Adams  v.  Lambert,  2  Jur.  1078;  Cruse  v.  Nowell,  25  L.  J.  Ch.  709,  (Kindersley, 
V.  C.) ;  Brumfit  v.  Merton,  3  Jur.  N.  S.  1198,  (Stuart,  V.  C.) 

(/)  Howard  v.  Knightley,  21  Beav.  331. 

(m)  2  My.  &  Cr.  207  ;  Osborne  v.  Harvey,  7  Jur.  229.  See  also  Gabriel  v.  Smith, 
16  Q.  B.  847. 


COMPENSATION.  231 

an  inclosure,  as  to  which  he  was  not  to  be  required  to  go  back  beyond 
the  award  ;  and  by  a  subsequent  condition  it  was  stipulated  that  the 
vendor  should  deliver  to  the  largest  purchaser  all  deeds  in  his  custody, 
but  should  not  be  required  to  produce  any  other  deeds  than  those  in  his 
possession  and  set  forth  in  the  abstract :  and  it  was  held  that  the  latter 
condition  did  not  so  affect  the  former  as  to  entitle  the  vendor  to  insist 
on  ^verifying  his  abstract  only  so  far  as  could  be  done  by  deeds  r:):o_f  o-i 
in  his  possession,  but  that  the  purchaser  was  entitled  to  a  gene-  L  J 
ral  verification.  And  so  a  condition  that  certain  specified  deeds  only 
should  be  given  up,  docs  not  limit  the  title  to  be  shown  to  that  disclosed 
by  these  deeds. (?i) 

§  788.  It  is  a  natural  principle  of  interpretation,  that  a  vendor  shall 
never  be  allowed  to  avail  himself  of  the  conditions  of  sale  for  the  purpose 
of  acting  fraudulently :  so  that  a  condition  for  compensation  will  not  apply 
where  there  has  been  misrepresentation  :(o)  and  under  a  condition  giving 
a  vendor  a  power  of  rescission  in  case  of  any  objections  to  the  abstract, 
he  will  not  be  permitted  fraudulently  to  deliver  an  imperfect  abstract  to 
which  objections  would  necessarily  be  taken,  and  thereupon  avail  him- 
self of  his  fraud  to  avoid  his  contract  by  means  of  this  condition  :(p)  and 
so  it  seems  that  a  condition  as  to  objections  to  title  being  delivered  by  a 
certain  time,  would  not  apply  where  there  had  been  misrepresentation. (/^) 

§  789.  Where  conditions  state  facts  upon  which  they  are  grounded, 
these  facts  must  be  proved.  (/•) 

§  790.  "Where  the  vendor  states  facts,  and  then  states  that  the  pur- 
chaser shall  take  such  interest  as  the  vendor  under  such  state  of  facts 
has,  the  purchaser  is,  it  seems,  bound  to  take  the  title  as  it  is ;  but 
where,  after  stating  facts,  the  conditions  add  as  a  positive  and  distinct 
fact,  and  not  as  a  conclusion  of  law  from  the  preceding  circumstances, 
that  the  vendor  can  make  a  good  title  to  the  fee :  as  this  title  may  have 
arisen  from  independent  sources,  the  purchaser  is  not  bound  bj^  the  title 
resulting  from  the  facts,* but  may  inquire  generally  whether  the  vendor 
can  make  out  a  good  title. M 


*CHAPTEK   II.  [*344] 

OF   COMPENSATION. 

§  791.  We  have  already  seen  that  where  a  vendor  has  not  all  the 
estate  he  has  contracted  to  sell,  the  purchaser  may,  generally  speaking, 
insist  on  taking  what  the  vendor  has  :  and  also  that  where  a  vendor  is 

(n)  Dick  v.  Donald,  1  Bli.  N.  S.  655. 

(o)  Stewart  v.  Alliston,  1  Mer.  26.     See  post,  ^  812. 

(p)  Per  Wigram,  V.  C,  in  Morlev  v.  Cook,  2  Ila.  111. 

(q)  Price  v.  Macaulay,  2  De  G.  M.  &  G.  339,  347, 

(V)  Symonds  v.  James,  1  Y.  &  C.  C.  C.  487. 

(s)  Johnson  v.  Smiley,  17  Beav.  223. 


232      FI^Y    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

able  to  fulfil  the  contract  in  its  substance,  but  unable  to  fufil  it  literally 
in  all  its  parts,  he  may  yet  sue  the  purchaser  for  its  specific  perform- 
ance. 

§  792.  From  these  two  principles  arises  the  right  to  compensation  in 
the  purchaser  in  respect  of  the  defect  in  the  estate,  which  he  himself 
insists  on  taking,  or  which  the  vendor  insists  that  he  shall  take.  It 
must  be  borne  in  mind  that  the  subjects  of  compensation  in  the  two  cases 
are  greatly  diS'erent,  and  that  many  defects  for  which  the  purchaser  may 
insist  on  compensation  would  not  be  made  the  subjects  of  compensation 
at  the  instance  of  the  vendor.(a) 

§  793.  Where  the  vendor  seeks  to  enforce  the  performance  of  a  con- 
tract with  compensation,  his  bill  is  demurrable,  unless  it  show  that  the 
defect  is  a  fit  subject  for  compensation. (Z*)  The  bill  ought  distinctly  to 
raise  the  question  of  compensation  :  and  it  has  been  recently  held  by 
Vice-Chancellor  Stuart  that  where  the  whole  of  the  vendor's  bill  was 
framed  on  the  view  that  a  good  title  had  been  shown  at  the  time  pre- 
r*^!*^!  scribed,  and  that  was  the  sole  *issue  raised  by  it,  and  the  court 
L  J  held  that  the  plaintiff  had  failed  in  that  contention,  specific  per- 
formance would  not  be  enforced  with  compensation. fe)  If  the  purchaser 
is  plaintiff,  and  is  aware  of  any  case  for  compensation,  it  seems  to  be  the 
best  course  to  allege  it  on  the  bill ;  but  compensation  may  be  granted 
for  a  defect  appearing  on  the  investigation  of  title,  though  the  frame 
and  prayer  of  the  bill  and  the  decree  made  at  the  hearing  make  no  re- 
ference to  compensation. ((Z) 

§  794.  In  early  times  the  court  did  not  entirely  disclaim  jurisdiction 
in  respect  of  damages,  where  they  were  incident  to  the  subject-matter 
already  in  contention  before  the  court. (c)  Subsequently,  however,  the 
jurisdiction  was  disowned,  and  a  broad  distinction  set  up  between  com- 
pensation and  damages.  The  extent  and  measure  of  the  one  are  different 
from  those  of  the  other,  so  that,  to  follow  the  illustration  given  by  Lord 
Eldon,  if  A.  contract  to  sell  to  B.  an  estate  tithe  free,  and  B.  contract  to 
sell  it  to  C.  on  the  same  conditions,  and  it  is  found  that  A.  cannot  con- 
vey tithe  free,  he  may  be  compelled  to  make  compensation  for  the  differ- 
ence in  the  value  of  the  property,  but  not  for  the  damage  sustained  by 
B.  from  being  unable  to  complete  his  contract  with  C.(/) 

§  795.  At  present,  however,  the  court  manifests  an  inclination  to  return 
to  the  original  view  of  its  jurisdiction,  and  to  assist  in  the  ascertainment 
of  damages  where  these  are  essential  to  complete  justice  in  the  case  before 
r*^in  ^^'  '^^^^^^  i^  ^  recent  case,(^)  A.  having  obtained  a  decree 
L         J  *against  B.  for  the  specific  performance  of  an  agreement,  brought 

(a)  For  instance,  compare  Nelthorpe  v.  Ilolgate,  1  Coll.  C.  C.  203,  with  Collier 
v.  Jenkins,  You.  295.    See  also  Wilson  v.  Williams,  3  Jur.  N.  S.  810,  (Wood,  V.  C.) 

(b)  Bowyer  v.  Bright,  13  Pri.  698. 

(c)  Ashton  V.  Wood,  3  Jur.  N.  S.  1164;  S.  C.  3  Sm.  &  Gif.  43G. 
((/)  Wilson  V.  Williams,  3  Jur.  N.  S.  810,  (Wood,  V.  C.) 

(fl)  Clcaton  V.  Gower,  Finch,  1G4;  City  of  London  v.  Nash,  3  Atky.  512,  where 
Lord  llurdwicke  refused  specific  i)erformance,  but  relieved  by  way  of  damages,  to 
be  ascertained  by  an  issue  of  c/uantum  danmijicalus.     See  also  post,  ^  938. 

(/)  Per  Lord  Kldon  in  Todd  v.  Gee,  17  Ves.  278  ;  Jenkins  v.  Parkinson,  2  My. 
&K.  5. 

(ff)  Prothero  v.  Phelps,  25  L.  J.  Ch.  105,  (L.  JJ.) 


COMPENSATION.  233 

an  action  at  law  fur  the  consequent  damages  which  he  alleged  himself  to 
have  sustained  by  the  destruction  of  his  business :  B.  then  filed  a  bill 
against  A.  asking  that  he  might  be  restrained  from  proceeding  at  law,  to 
which  the  court  acceded,  notwithstanding  the  argument  that  the  court 
could  not  give  damages.  "  That  it  is  competent  to  this  court  to  ascer- 
tain damages,  I  feel  no  doubt,"  said  the  Lord  Justice  Turner.(/i)  "It 
is  the  constant  course  of  the  court  in  the  case  of  vendor  and  purchaser, 
where  a  sufficient  case  is  made  for  the  purpose,  to  make  an  inquiry  as  to 
the  deterioration  of  the  estate,  and  in  so  doing,  the  court  is,  in  truth, 
giving  damages  to  the  purchaser  for  the  loss  sustained  by  the  contract 
not  having  been  literally  performed."  It  is  impossible  not  to  see  the 
great  propriety  of  courts  of  equity  being  clothed  with  such  a  jurisdiction, 
so  that  in  cases  coming  before  them  by  way  of  specific  performance,  com- 
plete justice  may  be  done  to  the  suitors  without  their  resorting  to  any 
other  forum.  One  object  of  the  recent  legislative  changes  in  the  admin- 
istration of  the  law  has  been  to  enable  courts  of  law  and  equity  to  do 
complete  justice  in  matters  arising  within  their  respective  jurisdictions  : 
and  it  is  in  entire  accordance  with  this  that  courts  of  equity  should  pro- 
ceed by  way  of  damages  in  the  cases  where  complete  justice  requires 
their  payment. (?) 

§  TOG.  The  court,  where  it  sees  fit,  may  direct  an  issue  to  ascertain  the 
amount  of  compensation  in  the  nature  of  damages. (/;) 

§  797.  The  contract  will  not  be  enforced  with  compensation  where  a 
material  part  of  the  subject-matter  is  wanting.  Formerly  the  court  went 
far  beyond  what  it  now  does  *in  enforcing  contracts  substantially  p-f^of'-T 
different  from  those  entered  into,  as  where  a  wharfinger  who  con-  L  J 
tracted  for  a  house  and  wharf  was  compelled  to  take  the  house  without 
the  wharf:  but  of  this  mode  of  proceeding  Lord  Eldon  frequently 
expressed  his  disapproval,  and  it  is  now  abandoned  by  the  court.(A 
"  The  court,"  said  Lord  Eldon  on  one  occasion, (m)  "is  from  time  to  time 
approaching  nearer  to  the  .doctrine  that  a  purchaser  shall  have  that  which 
he  contracted  for,  or  not  be  compelled  to  take  that  which  he  did  not  mean 
to  have." 

§  798.  Accordingly,  where  a  wharf  and  jetty  were  contracted  to  be 
sold,  and  it  turned  out  that  the  jetty  was  liable  to  be  removed  by  the 
Corporation  of  London,  specific  performance  was  refused. (?z)  In  the  case 
of  the  sale  of  a  residence  and  four  acres  of  land,  a  slip  of  ground  of  about 
a  quarter  of  an  acre  between  the  house  and  the  high-road  to  which  no 
title  was  made,  was  held  not  to  be  a  subject  of  compensation. (o)  In 
another  case,  a  yard  which  was  essential  to  the  enjoyment  of  the  premises, 

(A)  p.  108. 

((■)  See  the  state  of  the  law  as  practised  in  the  American  Courts,  (where  some 
diversity  appears  to  prevail,)  stated  by  Mr.  Justice  Stor^-,  Eq.  Juris.,  ?  798,  u. 

(k)  Ferguson  v.  Tadman,  1  Sim.  530  ;  Nelson  v.  Bridges,  2  Beav.  239. 

(/)  Drewe  v.  Hanson,  6  Yes.  675 ;  Halsey  v.  Grant,  13  Yes.  73  ;  Stapylton  v. 
Scott,  13  Yes.  425;  KnatchbuU  v.  Gruebar,  3  Mer.  124.  See  also  Ilowland  v. 
Norrls,  1  Cox,  59.  The  decision  in  Shirley  v.  Davis,  to  which  Lord  Eldon  fre- 
quently alludes,  appears  to  have  been  in  fact  the  opposite  of  that  which  his  lord- 
ship stated.     Shirley  v.  Stratton,  1  Bro.  C.  C.  440,  n.  (2). 

(m)  3  Mer.  146.  (n)  Tiers  v.  Lambert,  7  Beav.  546. 

(o)  Perkins  v,  Edc,  IG  Beav.  193. 


234      FRY    ON    SPECIFIC    PERFORMAXCE    OF    CONTRACTS. 

was  held  from  year  to  year  instead  of  for  the  term  of  twenty-three  years, 
for  which  the  rest  of  the  premises  was  held,  and  at  a  separate  rent :  this 
was  considered  to  be  a  defect  not  within  a  condition  for  compensation  for 
misdescription  of  the  property  or  any  other  error  whatsoever  in  the  par- 
ticulars.(p)  And  in  one  case,(g')  Lord  Eldon  thought  that  a  defect  in 
title  in  respect  of  eleven  out  of  seventy  acres  which  do  not  appear  to 
have  been  peculiar  in  their  position  or  character,  "  would  probably  be 
material  to  the  suit." 

P^o^q-i  *§  799.  In  some  oases  a  part  of  the  estate  contracted  for  may 
L  J  be  material,  because  if  any  one  else  were  to  possess  it,  it  would 
probably  be  turned  to  some  purpose  prejudicial  to  the  enjoyment  of  the 
estate,  as  where  land  near  a  mansion  was  such  that  it  would  be  most 
profitably  used  for  building-ground  or  for  a  brick  kiln.(r)  But  the 
nuisance  thus  apprehended  must  be  probable,  and  not  merely  distant, 
fanciful,  and  conjectural. (*•) 

§  800.  The  same  principle  of  course  applies  where,  though  the  whole 
land  is  capable  of  being  conveyed,  it,  or  a  part  of  it,  is  subject  to  rights 
which  materially  aifect  its  enjoyment  :  thus  a  right  of  way  which  would 
render  useless  for  building  a  close  advertised  as  building-ground,  does 
not  come  within  a  condition  for  compensation  ■,(t\  so  grants  of  rights  to 
the  owners  of  lower  lands,  to  fetch  water  from  a  spring  on  the  upper  lands, 
to  cut  and  cleanse  drains  leading  the  water  to  the  lower  lauds  and  other 
similar  rights  having  reference  to  four  and  a  half  acres  out  of  about  thirty 
sold,  were  held  to  constitute  a  material  defect  in  the  title  to  the  upper 
lands,  and  consequently  were  not  the  subject  of  compensation,  notwith- 
standing a  condition  that  a  mistake  in  the  description  or  an  error  in  the 
particulars  should  be  the  subject  of  compensation,  and  not  annul  the 
contract.  (?f) 

§  801.  In  the  following  cases,  on  the  other  hand,  the  defect  has  been 
considered  not  essential,  but  a  proper  subject  of  compensation  :  where 
there  was  an  objection  to  the  title  of  six  acres  out  of  a  large  estate,  and 
those  acres  do  not  appear  to  have  been  material  to  the  enjoyment  of  the 
rest  ;(y)  where  fourteen  acres  were  sold  as  water-meadow,  and  twelve  only 
answered  that  description  j(io)  and  where  on  a  purchase  by  the  tenant  in 
r*QzLQn  possession  property  described  *as  forty-six  feet  in  depth  proved 
L         J  to  be  but  thirty-three  feet. (a:) 

§  802.  Where  there  is  a  variation  in  the  quantity  of  the  estate,  the 
principle  on  which  the  abatement  is  calculated  is  prima  facie  average  : 
but  where  woodland  was  sold  as  so  many  acres,  and  the  wood  as  having 
been  valued  at  so  much,  the  abatement  was  for  so  much  as  the  soil 
covered  with  wood  would  be  worth  without  the  wood.(?/) 

§  803.  Nor  will  compensation  be  applied  even  where  there  is  a  con- 

{p)  Dobell  V.  Hutchinson,  3  A.  &  E.  355. 

{q)  Osbaldiston  v.  Askew,  2  J.  &  W.  539. 

(r)  KnatchbuU  v.  Grueber,  1  Mad.  153.  (s)  S.  C. 

{I)  Dvkes  V.  Blake,  4  Bing.  N.  C.  4G3. 

(m)  Shackleton  v.  Sutcliffe,  1  De  G.  &  Sm.  609. 

(y)  M'Queea  v.  Fiirquhar,  11  Ves.  4G7.         («■)  Scott  v.  Hanson,  1  R.  &  My.  128. 

\x)  King  V.  Wilson,  6  Beav.  124.     See  also  Cann  v.  Cauu,  3  Sim.  447. 

(/)  Hill  V.  Buckley,  17  Ves.  394. 


COMPENSATION.  235 

dition  of  sale  providing  for  compensation  where  there  is  a  misdescription 
«in  a  material  and  substantial  point,  so  far  affecting  the  subject-matter 
of  the  contract  as  that  it  may  be  reasonably  supposed  that,  but  for  such 
misdescription,  the  purchaser  might  never  have  entered  into  the  contract 
at  ali.'Yz)  Thus,  compensation  will  not  be  enforced  where  the  main 
part  of  the  estate  sold  as  freehold  was  not  freehold,  but  leasehold  for  a 
long  terra  -.(a)  and  where  the  particulars  of  a  leasehold  house  in  Covent 
Garden  stated  that  by  the  lease  <<no  offensive  trade  was  to  be  carried  on, 
and  that  the  premises  could  not  be  let  to  a  coffee-house-keeper  or  work- 
ing hatter,"  and  there  was  a  condition  for  compensation  in  case  of  error 
or  misstatement,  and  the  original  lease,  in  fact,  prohibited  a  vast  variety 
of  other  businesses  than  those  described,  including  the  sale  of  any  pro- 
visions, the  purchaser  was  held  to  be  entitled  to  rescind  the  contract. (i) 
Accordingly,  where  leasehold  property  was  sold  for  the  residue  of  a  term 
of  ninety-nine  years,  which  commenced  on  the  24th  June,  1838,  under 
conditions  which  prohibited  the  purchaser's  calling  for  the  lessor's  title, 
and  stipulated  that  any  error  or  misstatement  of  the  property,  term  of 
years,  or  other  description,  should  not  vitiate  the  sale,  but  that  a  com- 
pensation ^should  be  given  :  the  term  sold  was  really  not  the  r^jco-A-i 
residue  described,  but  a  derivative  term  less  by  three  days  than  L  '  J 
the  original  one  :  the  court  held  that  the  underlease  was  not  substan- 
tially the  same  thing,  the  resulting  rights  being  different,  and  accord- 
ingly dismissed  with  costs  a  bill  praying  for  specific  performance  with 
compensation. (c) 

§  804.  Compensation  will,  however,  be  given  in  cases  where  the  tenure, 
though  not  as  stated,  is  nearly  the  same,  as  where  lands  sold  as  freehold 
were  copyholds  of  which  the  tenure  under  a  composition  with  the  lord 
was  scarcely  different  from  freehold. (J)  But  in  a  previous  case(e)  before 
the  master  of  the  rolls,  where  there  was  a  condition  for  compensation  in 
the  case  of  error  in  the  description  of  the  premises,  or  of  any  other  error 
whatsoever  in  the  particulars,  and  the  property  which  was  described  as 
copyhold  turned  out  to  be  partly  freehold,  Sir  John  Romilly  refused  to 
compel  specific  performance  against  the  purchaser :  he  had  contracted 
to  purchase  one  thing,  and  he  might  refuse  to  accept  another. 

§  805.  It  is  not  easy  to  lay  down  any  definite  rule  with  regard  to  what 
incumbrances  are,  and  what  are  not,  the  proper  subjects  of  compensation. 

§  80G.  Compensation  has  been  allowed  for  small  annual  payments  out 
of  tithes, (y")  and  for  quit-rents  and  rent-charges  where  small. (^] 

(2)  Per  Tindal,  C.  J.,  in  Flight  v.  Booth,  1  Bing.  N.  C.  3T7. 

(a)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494 ;  Drewe  v.  Corp,  9  Ves.  368 ;  S.  C.  1  S.  & 
S.  201,  n. 

(6)  Flight  V.  Booth,  1  Bing.  N.  C.  370. 

(c)  Madcley  v.  Booth,  2  De  G.  &  Sm.  718.  See  this  case  referred  to,  Darlington 
V.  Hamilton,  1  Kav,  550. 

{d)  Price  v.  Macaula^v,  2  De  G.  M.  &  G.  339.  In  Hick  v.  Phillips,  Prec.  in  Ch. 
575,  a  bill  l)j  a  vendor  of  an  estate  which  in  the  articles  was  treated  as  freehold, 
was  refused  because  about  one-sixth  in  value  was  copyhold,  but  nothing  is  stated 
as  to  the  peculiar  nature  of  the  tenure. 

(e)  Ayles  v.  Cox,  16  Beav.  23. 

(/)  Horniblow  v.  Shirley,  13  Yes.  81 ;  Halsey  v.  Grant,  13  Ves.  73. 

(<7)  Esdaile  v.  Stephenson,  1  S.  &  S.  122. 


23G       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  807.  But  it  has  been  refused  in  respect  of  draining  and  embanking 
taxes  charged  on  fen-lands  by  a  local  but  public  act^f/i)  and  of  a  lease 
for  life  at  a  low  rent.(<) 

r*^^n  *§  ^^^'  "^^^  ^°  ^^^^  regai-d  to  tithes,  which,  though  they 
L  J  were  formerly  held  a  subject  for  compensation, (/.•)  are  now  con- 
sidered not  to  be  so.(?)  Where,  however,  the  circumstances  showed 
that  the  question  whether  the  land  was  to  be  tithe  free  or  not,  was  an 
immaterial  one  in  the  view  of  the  purchaser,  and  the  tithes  were  not 
likely  to  arise,  the  court  enforced  the  contract  with  compensation  :(m) 
and  the  same  was  done  where  only  part  of  the  estate  was  sold  as  tithe 
free,  and  it  turned  out  that  only  a  smaller  part  was.fn) 

§  809.  Indemnity  is  a  species  of  compensation,  inasmuch  as  something 
else  is  given  in  place  of  the  very  thing  contracted  for :  it  is  applicable  to 
those  cases  where  the  loss  is  not  certain,  but  contingent ;  and  it  seems  that 
wherever  a  party  is  entitled  to  compensation  in  respect  of  such  a  loss, 
he  may,  at  his  election,  have  an  indemnity.(o) 

§  810.  But  the  court  will  not  compel  a  purchaser  to  take  an  indemnity, 
unless  such  indemnity  were  part  of  the  contract  between  the  parties, 
even  in  respect  of  a  defect  which  might  be  the  subject  of  compensation  :(p\ 
nor  against  a  material  incumbrance, (j)  nor  in  respect  of  a  misdescrip- 
tion :(r)  still  less  where  the  contingency  against  which  the  indemnity  is 
proposed  would  imperil  the  whole  subject-matter  of  the  contract. (.s)  But 
the  purchaser  may  in  many  cases  take  an  estate  with  an  indemity,  (as, 
for  instance,  against  a  widow's  dower,)  where  the  vendor  could  not  com- 
pel the  purchaser  to  accept  it. (A 

*§  811.  The  cases  where  the  defect  is  from  its  magnitude  or 
L  "'-J  importance,  not  a  proper  subject  for  compensation,  have  been 
already  stated.  We  may  now  consider  some  other  cases,  where  the  doc- 
trine will  not  be  applied. 

§  812.  The  principle  of  compensation,  whether  arising  under  the  gene- 
ral doctrine  of  the  court,  or  under  a  condition  for  compensation  in  case  of 
any  error  or  misstatement,  will  not  be  applied  where  there  has  been  mis- 
representation,(it) — even,  it  seems,  though  the  difference  be  of  such  a 
character  that,  if  it  had  arisen  from  error,  it  would  have  been  subject 
to  compensation,  as,  for  instance,  in  respect  of  the  diiference  between 
copyholds  nearly  equal  in  value  to  freeholds,  and  freeholds. (v)     And  so 

(/()  B.arraud  v.  Archer,  2  Sim.  433  ;  affirmed  on  appeal,  2  R.  &  My.  751. 

(i)  Collier  v.  Jenkins,  You.  295.  In  Nelthorpe  v.  Holgate,  1  Coll.  C.  C.  203, 
compensation  for  an  outstanding  life-estate  was  enforced  against  the  vendors. 

(k)  Lord  Stanhope's  Case,  cited  6  Ves.  678. 

(l)  Ker  V.  Clobery,  Sug.  Vend.  165  ;  Binks  v.  Lord  Rokeby,  2  Sw.  222. 

(?«)  Smith  V.  Tolcher,  4  Russ.  302. 

{n)  Binks  v.  Lord  Rokeby,  2  Sw.  222.  (o)  Milligan  v.  Cooke,  16  Ves.  1. 

(p)  Balmanuo  v.  Lumley,  1  V.  &  B.  224 ;  per  Lord  Eldon  in  Paton  v.  Brebncr,  1 
Bli.  66;  Aylett  v.  Ashton,  1  My.  &  Cr.  105. 

(q)  Wood  V.  Bernal,  19  Ves.  220.  (r)  Ridgway  v.  Gray,  1  M'N.  &  G.  109. 

(«)  Fildes  V.  Hooker,  3  Mad.  193. 

(i)  Wilson  V.  Williams,  3  Jur.  N.  S.  810,  (Wood,  V.  C.) 

(m)  Per  Sir  Thos.  I'lumer  in  Viscount  Clermont  v.  Tasburgh,  1  J.  &  W.  120; 
Duke  of  Norfolk  v.  Worthy,  1  Camp.  337,  340  ;  Powell  v.  Doubble,  Sug.  Vend.  23  ; 
Stewart  v.  Alliston,  1  Mer.  26;  cf.  Morley  v.  Cook,  2  lla.  111. 

(y)  Price  v.  Macaulay,  2  De  G.  M.  &  G.  339,  344. 


COMPENSATION.  237 

where  there  was  a  misrepresentation  as  to  the  tenancy  of  the  house,  the 
court  refused  to  hold  the  purchaser  to  his  contract  and  give  him  com- 
pensation for  the  delay,  which  would  have  been  needed  for  an  ejectment, 
although  the  purchaser  bought  for  investment,  and  not  for  residence. (u-) 

§  813.  It  is  a  necessary  principle  that,  where  there  are  no  data  from 
which  the  amount  of  compensation  can  be  ascertained,  the  court  cannot 
enforce  tlie  contract  with  compensation.  But  the  objection  that  the 
compensation  is  unascertainable  is  one  which  the  court  is  unwilling  to 
entertain;  and  it  grants  relief  with  compensation  in  many  cases  in  which 
the  ascertainment  of  the  amount  to  be  paid  cannot  be  said  to  be  certain 
or  exact,  but  only  the  reasonable  estimate  from  the  evidence  of  compe- 
tent persons  ;  as,  for  instance,  in  compensation,  for  a  right  to  dig  coals 
in  the  laud  sold.(.c) 

*§  814.  But  where  this  reasonable  estimate  is  not  attainable,  |.^.,-o-i 
the  court  refuses  compensation  :  thus,  where  a  house  and  grounds  L  J 
were  sold  by  the  court,  and,  pending  the  making  out  of  the  title,  some 
ornamental  timber  was  cut  down,  the  purchaser  was  discharged  and  not 
compensated,  because  the  act  affected  the  value  of  the  property  to  the 
purchaser  as  a  residence,  in  a  way  which  the  court  was  unable  to  mea- 
sure.(^)  And  where  the  particulars  represented  the  average  size  of  the 
timber  in  the  wood,  which  was  the  property  sold,  as  approaching  50  feet, 
but  in  no  way  specified  the  number  of  the  trees;  and  the  plaintiff's  wit- 
nesses treated  no  trees  containing  less  than  10  feet  as  timber  trees, 
and  on  this  basis  showed  an  average  of  34  feet  6  inches;  whilst  the  de- 
fendant's witnesses,  reckoning  all  trees  containing  not  less  than  5  feet 
as  timber  trees,  showed  an  average  of  22  feet  only ;  the  court  held  that 
the  subject-matter  sold  fell  short  of  the  description  but,  in  the  absence 
of  any  representation  as  to  the  number  of  trees,  the  court  had  no  data 
for  calculation,  and  therefore  could  not  give  compensation,  but  dismissed 
the  bill.(.:) 

§  815.  The  same  principle  seems  to  have  governed  another  case,  in 
which  the  premises  were  described  as  in  the  joint  occupation  of  A.  and 
B.  as  lessees,  whereas  they  were  in  fact,  in  their  joint  occupation,  but 
not  as  lessees,  but  A.  was  the  assignee  from  C,  the  original  lessee  :  it 
was  held  that  this  was  not  a  case  where  a  purchaser  could  claim  com- 
pensation, nor  where  he  could  be  forced  to  take  an  indemnity. (o) 

§  81G.  On  the  same  principle  that  a  warranty  or  a  representation  is 
not  binding,  when  made  in  respect  of  some  ^defect  that  is  per-  r^.:^- .-i 
fectly  pateut,(i)  the  court  will  not  enforce  compensation  for  do-  L  '*'  J 
fects  of  this  nature  :  so  that  no  compensation  was  given  in  respect  of  a 
farm  described  as  lying  within  a  ring  fence,  which  did  not  so  lie,  as  the 
purchaser  had  himself  seen  and  knew.(r) 

§  817.  But  in  order  that  this  principle  shall  apply,  the  defect  must  be 

(w)  Lachlani  v.  Reynolds,  Kay,  52.     See  ante,  §  V88. 
(x)  Ramsden  v.  Hirst,  4  Jur.  N.  S.  200,  (Kindersley,  V.  C.) 
(V)  Magcnnis  v.  Fallon,  2  Moll.  561,  584. 
(z)  Lord  Brooke  v.  Rounthwaitc,  5  Ha.  298. 

{a)  Ridgway  v.  Gray,  1  M'X.  &  G.  109.    See  also  White  v.  Cuddon,  8  CI.  &  Fin. 
7G6 ;  Wilson  v.  Williams,  3  Jur.  N.  S.  810,  (Wood,  V.  C.;)  .and  ante,  g  303. 
(b)  See  ante,  ??  44G,  5G3.  (c)  Dvcr  v.  Hargrave,  10  Ves.  505. 

December,  1858.— 16 


238      I'^Y    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

perfectly  visible  to  everybody  :  therefore,  where  a  representation  was  made 
as  to  the  dry-rot  in  a  house,  which  was  not  a  matter  so  perfectly  visible, 
the  court  gave  compensation  :(d\  and  where  a  tenant  in  possession  pur- 
chased the  property,  which  was  represented  as  46  feet  in  depth,  whereas 
it  was  in  fact  only  33  feet,  he  was  held  entitled  to  compensation,  inas- 
much as  occupiers  are  not  in  the  habit  of  measuring  their  premises.(e) 

§  818.  The  ordinary  right  of  a  purchaser  to  insist  on  performance  of 
the  agreement  and  compensation  may  of  course  be  excluded  by  contract. 
Therefore,  where  A.  agreed  to  sell  to  B.  certain  freehold  property,  and 
it  was  stipulated  that  if  B.'s  counsel  should  be  of  opinion  that  a  marketa- 
ble title  could  not  be  made  at  the  time  appointed  for  the  completion  of 
the  purchase,  the  agreement  should  be  void  and  be  delivered  up  to  be 
cancelled ;  and  B.'s  counsel  was  of  opinion  that  a  good  title  could  be  made 
only  to  two-thirds,  and  that  one-third  was  held  for  a  life  only ;  the  pur- 
chaser insisted  on  specific  performance  with  compensation,  but  it  was 
refused,  because  the  contract  was  by  its  terms  void  under  the  circum- 
stances. (/) 

§  819.  Inasmuch  as  the  court  will  not  allow  any  proceedings  to  be 
taken  at  law  without  its  leave,  in  respect  of  the  subject-matter  of  the 
suit,  the  court  will  enforce  compensation  at  any  time  before  the  comple- 
r^Q'KT  tion  of  the  transaction  by  the  execution  of  the  conveyance  and 
L  -I  the  ^payment  of  all  the  purchase-money,  in  respect  of  any  matter, 
the  fit  subject  of  compensation,  which  has  arisen  before  that  time,  and 
whether  before  or  after  contract. (r/) 

§  820.  On  this  principle,  where  an  estate  was  sold  as  tithe  free,  and 
after  a  claim  had  been  started  by  the  incumbent  of  one  parish,  the  con- 
veyance was  executed,  but  a  part  of  the  purchase-money  was  set  aside  as 
an  indemnity  against  this  claim  :  the  claim  came  to  nothing,  but,  before 
the  indemnity  fund  was  transferred,  it  appeared  that  the  land  was  in 
another  parish,  and  was  subject  to  tithe  to  its  incumbent ;  it  was  held 
on  a  bill  filed  by  the  purchaser  that  he  was  entitled  to  compensation  in 
respect  of  these  tithes  out  of  the  fund.(7i) 

§  821.  But  after  the  complete  execution  of  the  contract,  the  court 
has  no  jurisdiction  to  enforce  compensation. (^■) 

§  822.  Following  the  principle  above  stated,  the  court  will  allow 
compensation  for  deterioration  in  the  estate,  between  the  time  when 
the  contract  ought  to  have  been  completed  by  the  vendor,  and  the 
time  when  he  does  in  fact  make  out  the  title, (ZA  whether  it  have  arisen 
by  the  wilful  defoult  or  merely  by  the  negligence  of  the  vendor  or  his 
tenants. (A  Thus,  where  stone  had  been  subtracted  from  a  quarry  pend- 
ing a  suit  for  the  specific  performance  of  an  agreement  to  grant  a  license 
to  work  it,  compensation  was  obtained  by  means  of  a  supplemental  bill.(m) 

{d)  Grant  v.  Munt,  Coop.  173.  (e)  King  v.  Wilson,  6  Beav.  124. 

(/)  Williama  v.  Edwards,  2  Sim.  Y8. 

(g)  Frank  v.  Basnett,  2  My.  &  K.  618;  Cann  v.  Cann,  3  Sim.  447;  Prothero  v. 
Phelps,  25  L.  J.  Ch.  105,  (L.JJ.;)  cf.  Cator  v.  Earl  of  Pembroke,  1  Bro.  C.  C.  301  ; 
'2  Bro.  C.  0.  282.  (A)  Crompton  v.  Lord  Melbourne,  5  Sim.  353. 

(i)  Newham  v.  May,  13  Pri.  749.  (A)  Binks  v.  Lord  Rokeby,  2  S\v.  222. 

(1)  Foster  v.  Deacon,  3  Mad.  394.  (m)  Nelson  v.  Bridges,  2  Beav.  239. 


REFERENCE    OF    TITLE.  239 

The  cases  in  -which  the  vendor  and  purchaser  are  respectively  liable  for 
deterioration  of  the  estate  are  considered  elsewhere. (??) 

§  823.  A  condition,  stipulating  that  if  through  any  ^mistake  r*ocp-i 
the  estate  should  be  improperly  described,  or  any  error  or  mis-  L  J 
statement  be  inserted  in  the  particular,  such  error  or  misstatement  should 
not  vitiate  the  sale,  but  the  vendor  or  purchaser,  as  the  case  might  hap- 
pen, should  pay  or  allow  compensation,  has  been  held  to  cover  those 
cases  of  innocent  mistake  where,  in  the  absence  of  such  a  condition,  the 
purchaser  would  be  unable  to  insist  on  specific  performance  with  com- 
pensation, but  would  be  obliged  to  take  the  whole  as  it  stood,  or  to  allow 
the  contract  to  be  vacated. (o) 


♦CHAPTER   III.  [*357] 

OF  REFERENCE   OP   TITLE. 

§  824.  Where  the  vendor  of  land  sues  the  purchaser  for  a  specific 
performance  of  the  contract,  the  defendant  may,  in  some  cases,  succeed 
in  having  the  bill  dismissed  at  the  hearing,  on  the  ground  of  a  defect  in 
the  plaintiff's  title,  provided  the  defect  in  title  has  been  prominently  put 
forward  in  the  pleadings  :(a)  but  where  this  is  not  the  case,  the  defen- 
dant is  entitled  to  have  an  inquiry  directed  as  to  the  title  of  the  vendor 
to  the  lands  in  question.  This  right  is  derived  from  the  extraordinary 
nature  -of  the  jurisdiction  which  the  vendor  seeks  to  put  in  action,  in 
consideration  of  which  the  purchaser  has  a  right  not  only  to  have  such  a 
title  as  the  vendor  offers  upon  the  abstract  unauthenticated,  but  the 
highest  assurance  upon  the  nature  of  his  title  which  can  be  acquired  for 
him  by  the  production  of  deeds,  the  directing  of  inquiries,  and  the  sift- 
ing of  the  vendor's  conscience.  (6) 

§  825.  Hence  it  follows  that,  though  the  purchaser  may  admit  that 
he  has  only  one  particular  objection, (c)  or  no  objection  at  all((7)  to  the 
title,  he  is  equally  entitled  to  a  general  reference  as  to  it. 

§  82G.  The  right  is  so  far  that  of  the  purchaser  that  the  vendor  can- 
not except  to  the  title,  so  as  to  assert  his  own  title  to  be  bad.(e) 

*§  827.  Where  the  purchaser  is  the  plaintiff  in  a  suit  for  r-^orqn 
specific  performance,  he  is  also  entitled  to  a  reference  of  title  ;  ^  ^  J 
but,  inasmuch  as  it  is  he,  and  not  the  vendor,  who  is  calling  on  the 
court  to  act,  he  docs  so  at  his  own  risk  ;  and,  therefore,  if  he  knows  of 
objections  and  asks  for  a  reference,  and  then  waives  the  objections,  he 
will  have  to  bear  the  costs  of  investigating  the  title. (/")  And  it  would 
seem  that  the  same  result  must  follow  where  the  effect  of  a  reference 
is  to  show  that  the  vendor  had  at  the  due  time  disclosed  to  the  purchaser 
a  perfect  title. 

i?i)  Sec  post,  §  913.         (o)  Painter  v.  Newby,  11  Ha.  26.     See  also  ante,  §  706. 
(a)  Lucas  v.  James,  1  Ila.  418,  425.  (b)  Jenkins  v.  Hiles,  6  Ves.  646. 

(c)  Lesturgeon  v.  Martin,  3  M}'.  &  K.  255. 

(d)  Jenkins  v.  Ililes,  6  Ves.  046  ;  cf.  Fleetwood  v.  Green,  15  Ves.  594. 

(e)  Bradley  v.  lluntou,  15  Beav.  400.  (/)  Bennett  v.  Fowler,  2  Bcav.  302. 


240      FP^Y    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  828.  The  right  to  this  reference  is  not  confined  to  sales  of  real 
estate,  but  extends  to  any  species  of  property  with  regard  to  which  the 
court  may  entertain  suits  for  performance,  and  the  nature  of  which 
renders  such  an  inquiry  proper.  Accordingly,  inquiries  have  been  di- 
rected into  the  title  of  vendors  to  shares  in  railway  companieSj^f/)  and  in 
mining  concerns.  (/«)  The  nature  of  the  inquiry,  of  course,  varies  according 
to  the  nature  of  the  property,  and  the  essentials  of  a  good  title  to  it. 

§  829.  But  there  are  necessarily  many  contracts  in  respect  of  which 
no  such  inquiry  is  made  :  where  the  contract  is  not  for  the  sale  of  any 
property,  such  a  reference  is  of  course  out  of  the  question.  And  so,  too, 
where  a  contract  is  rather  in  the  nature  of  a  compromise  of  disputed 
rights  than  of  a  contract  for  sale,  the  court  will  not  make  the  inquiry.(r) 
In  a  recent  case,  where  a  small  piece  of  land  was  described  as  held  of 
certain  commissioners  of  waste  lands  at  a  rent  of  six  shillings,  it  was 
doubted  whether  a  purchaser  could  call  on  a  vendor  for  the  title  of  the 
commissioners. (/*;) 

§  830.  The  court  will  not  direct  an  inquiry  where,  though  the  con- 
_  -.  tract  be  one  of  sale,  the  vendor  only  sells  *such  interest  as  he 
L  J  has  :(J)  such  an  agreement  is,  of  course,  perfectly  valid,  but, 
being  in  restraint  of  the  pvirchascr's  implied  right  to  a  good  title,  it 
must  be  made  clear  and  unambiguous  to  the  purchaser.(?7i)  Of  such 
stipulations  there  are  many  cases :  thus,  where  a  purchaser  agreed  to 
accept  the  vendor's  title  without  dispute,  he  was  held  to  be  debarred 
from  taking  an  objection  on  account  of  an  incumbrance  which  left  the 
legal  state  outstanding.(?i)  So,  again,  where  conditions  of  sale  of  a  fee- 
farm  rent  stated  that  no  evidence  should  be  required  of  the  receipt  or 
payment,  or  existence  of  the  ground-rent,  other  than  that  disclosed  by  a 
conveyance  mentioned,  and  that  no  objection  should  be  taken  to  the 
title  in  consequence  of  the  non-payment  or  non-receipt  of  the  said  rent, 
and  the  purchaser  objected  that  the  rent  had  not  been  paid  for  twenty 
years,  and  so  was  extinguished,  and  that  there  was  therefore  no  subject- 
matter  of  the  contract,  and  therefore  no  contract :  the  court  held  that 
the  purchaser  had  by  the  contract  taken  on  himself  the  chance  of  being 
able  to  substantiate  his  claim  to  the  rent.(o)  A  vendor  may,  of  course, 
stipulate  that  a  purchaser  shall  take  such  title  as  he  himself  bought 
with.(;9) 

§  881.  Where  the  vendor  was  entitled  to  one  undivided  third  in  a 
leasehold  interest  in  certain  collieries,  and  the  purchaser  to  another  undi- 
vided third  under  the  same  title,  and  the  contract  was  for  an  assignment 
of  the  vendor's  share  and  interest  in  the  collieries  :  the  contract  was  held 

{g)  Shaw  v.  Fisher,  2  De  G.  &  Sm.  11.  (A)  Curling  v.  Flight,  2  Phil.  613. 

(i)  Godson  v.  Turner,  15  Beav.  46. 

\k)  Ashton  V.  Wood,  3  Jur.  N.  S.  1164,  (Stuart,  V.  C.) 

(/)  See  ante,  ^  571. 

(m)  Southby  v.  Ilutt,  2  My.  &  Cr.  207,  212.  See  also  Anderson  v.  Higgins,  1 
Jon.  &  L.  718. 

{n)  Dulce  v.  Barnctt,  2  C.  C.  C.  337  ;  Wilmot  v.  Wilkinson,  6  B.  &  C.  506. 

(o)  Hanks  v.  Palling,  6  Ell.  &  Bl.  659;  cf.  Smith  v.  Harrison,  26  L.  J.  Ch.  412, 
stated  ante,  §  237. 

(p)  Monro  v.  Taylor,  8  Ha.  51,  71. 


REFEREXCE    OF    TITLE.  241 

to  be  for  the  sale  of  the  vendor's  share  and  not  of  the  land,  and  the 
vendor  was  held  not  liable  to  show  the  lessor's  title. (</) 

§  832.  The  vendor  may  by  express  stipulation,  as  we  *have  r:{:qpn-i 
seen,  entirely  exclude  any  inquiry  into  his  title  :  he  may  take  a  L  -I 
middle  course,  and,  without  excluding,  may  limit  that  inquiry.  He  may 
exclude  all  objections  in  respect  of  a  particular  instrument, (r)  or  all 
objections  to  title  earlier  thau  a  certain  deed,(.s)  or  he  may  sell  merely  an 
equitable  and  not  a  legal  estate. (^)  In  all  cases  where  an  estate  is  sold 
subject  to  conditions  of  sale  as  to  title,  the  inquiry  is  whether  a  good 
title  is  made  in  accordance  with  such  conditions.  And  where  A.  con- 
tracted with  B.  for  a  lease,  B.  knowing  the  purposes  for  which  A.  wanted 
the  house,  and  A.  knowing  that  B.'s  title  was  merely  leasehold,  a  refe- 
rence was  directed,  having  regard  to  the  covenants  in  the  lease,  and  the 
purposes  for  which  the  premises  were  taken. (h) 

§  833.  A  very  common  case,  in  respect  of  which  the  question  arises 
whether  the  inquiry  has  been  limited  or  not,  is  in  respect  of  a  lessor's 
title  in  contracts  to  assign  a  lease,  or  to  grant  an  under-lease. (w)  The 
cases  on  this  subject  fall  into  two  categories:  the  first,  where  it  is  stipu- 
lated only  that  the  lessor's  title  shall  not  be  produced,  which  relieves  the 
vendor  from  the  necessity  of  production,  but  does  not  prevent  the  pur- 
chaser from  showing,  by  any  means  in  his  own  power,  that  the  vendor's 
title  is  defective :  the  second  class  of  cases  are  those  where,  in  addition 
to  such  a  stipulation,  it  is  also  provided  that  the  lessor's  title  shall  not 
be  inquired  into,  which  altogether  precludes  inquiry  for  every  purpose 
into  that  portion  of  the  title,  and  compels  the  purchaser  to  take  it  as 
it  is. 

§  834.  Of  the  first  of  these  classes  an  illustration  may  be  found  in  the 
case  of  Darlington  v.  Hamilton, (if)  where  there  *was  a  stipula-  r-^^op-in 
tion  that  the  lessor's  title  should  not  be  produced,  and  the  pur-  L  J 
chaser  discovered  that  the  lessor's  title  was  objectionable  by  reason  of  its 
being  involved  with  the  title  to  other  property,  so  that  the  purchaser 
would  run  the  risk  of  being  ousted  by  reason  of  a  breach  of  covenant  in 
respect  of  other  property,  and  the  court  accordingly  refused  specific  per- 
formance. 

§  835.  On  the  other  hand,  where  the  condition  provided  that  the 
lessor's  title  should  neither  be  produced  nor  inquired  into,  and  the  pur- 
chaser ofi"ered  acts  of  parliament  in  evidence  that  the  lessor,  which  was  a 
public  company,  had  no  power  to  grant  leases,  the  objection  was  held  to 
be  precluded. (.r) 

§  836.  The  case  of  Spratt  v.  Jefi'ery,(_y)  which  is  at  variance  with  the 

(q)  Phipps  V.  Child,  3  Drew,  709. 

(r)  Corrall  v.  Cattell,  4  M.  &  W.  734 ;  S.  C.  3  Y.  &  C.  Ex.  413. 

h)  Taylor  v.  Martlndale,  1  Y.  &  C.  C.  C.  658. 

U)  Ashworth  v.  Mounsev,  9  Ex.  175. 

(w)  Wilbraham  v.  Livesey,  18  Beav.  206.  For  the  form  of  reference  where  the 
vendor  has  a  power  of  sale  with  the  consent  of  trustees,  sec  Graham  v.  Oliver,  3 
Beav.  124. 

(v)  As  to  waiver  of  this  right,  infra,  §  855. 

(w)  Kay,  550 ;  Shepherd  v.  Keatley,  1  Cr.  M.  k  R.  117. 

(x)  Hume  v.  Bentlev,  5  De  G   &  Sm.  520.  (y)  10  B.  &  C.  249. 


242      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

distinction  above  stated,  must  now  be  considered  as  overruled ;  for,  in  that 
case,  words  wliich  merely  excluded  the  purchaser  from  calling  for  the 
lessor's  title,  were  held  to  preclude  any  objection  being  taken  to  that 
title. 

§  837.  We  have  seen  that,  generally,  either  vendor  or  purchaser  has  a 
right  to  the  inquiry  in  question, — the  one  being  entitled  to  an  opportu- 
nity of  perfecting,  and  the  other  of  investigating  the  title.  But  with 
regard  to  either,  this  right  may  be  waived. 

§  838.  Thus,  if  the  vendor  states  his  title,  and  conclusively  avers  that 
he  can  make  no  other  or  better  title,  and  the  title  disclosed  is  objected 
to  by  the  purchaser,  the  court  may  decide  without  a  reference ;(«)  but  if 
the  decision  be  in  favour  of  the  vendor,  it  would  then  appear  that  the 
purchaser  would  be  entitled  to  call  for  a  reference. 
r*Rfi91  §  ^^^'  ^^^  '^^  '^^  ^^^^  regard  to  a  waiver  by  the  purchaser  *that 
L  "'-I  this  question  more  often  arises ;  for  a  purchaser  originally  entitled 
to  examine  the  vendor's  title  may  subsequently  waive  that  right  either 
expressly  or  by  implication;  and  this  waiver  may  be  either  as  to  the  whole 
title  or  limited  to  parts :  and  in  case  of  an  express  waiver,  it  may  be 
either  absolute  or  conditional. (a) 

§  840.  An  admission  of  title  by  a  defendant  in  his  answer  is  an  express 
waiver,  which  excludes  the  right  to  a  reference  of  title  :  for  this  purpose 
it  is  enough  that  the  defendant  admits  as  to  his  belief  that  at  the  time  of 
the  contract  the  plaintiff  had  a  title  ;  for,  by  the  rule  of  pleading,  what 
a  defendant  admits  as  to  his  belief  is  treated  as  an  admission  of  the 
fact.(i) 

§  841.  This  waiver,  where  not  express,  must  be  clearly  implied  from 
the  acts  of  the  purchaser.  '<  The  court,"  said  Lord  Eldon,(c)  "will  at 
least  take  care  that,  where  it  is  contended  that  the  defendant  has  waived 
his  right  to  a  reference,  it  shall  be  clear  that  there  was  no  surprise  upon 
him,  and  that  there  has  been  a  full  and  fair  representation  as  to  the  title 
on  the  part  of  the  plaintiff:"  and  so  where  the  purchaser  relies  on  any 
dealings  in  respect  of  the  abstract  as  a  waiver  of  objections  to  title,  the 
contents  of  the  abstract  must  raise  the  objection  in  question  clearly  and 
explicitly,  and  not  merely  by  inference  or  notice. (fZ) 

§  842.  It  is  often  the  case  that  there  is  only  a  particular  objection  to 
the  title  that  is  of  moment,  and  it  is  then  frequently  a  question  whether 
the  purchaser  has  not  waived  all  right  to  object  to  it. 

§  843.  The  cases  thus  fall  into  three  classes  :  (1)  those  of  acts  done  by 
the  purchaser  after  the  objection  is  known  to  him,  the  objection  being 
in  its  nature  curable ;  (2)  those  of  similar  acts  \»here  the  defect  is 
P^opq-i  incurable;  (3)  and  *thosc  of  acts  before  the  objection  is  known 
L  J  to  the  purchaser.  It  is  evident  that  under  the  last  we  may  treat 
of  the  question  of  a  general  waiver  of  title. 

{2)  Rose  V.  Calland,  5  Ves.  186;  Oraerod  v.  Hardinan,  5  Ves.  722,  explained  in 
Jenkins  v.  Ililes,  6  Ves.  G54,  655. 

(a)  Townley  v.  Bond,  2  Dr.  &  W.  240,  2G1. 

h)  Phipps  V.  Cliild,  .3  Drew,  709. 

h)  In  Jenkins  v.  Ililes,  6  Ves.  655;  Ilaydon  v.  Bell,  1  Bear.  337. 

{(1)  Blacklow  V.  Laws,  2  Ha.  40. 


REFERENCE    OF    TITLE.  243 

§  844.  (1)  Wliere  the  defect,  though  known,  is  yet  one  which  it  is  or 
may  be  in  the  power  of  the  vendor  to  remedy,  acts  which  indicate  an  in- 
tention to  complete  may  yet  not  amount  to  a  waiver,  because  they  may 
be  made  in  the  faith  and  expectation  that  the  remedy  will  be  applied. 

§  845.  And  a  negotiation  about  the  objection  between  the  parties 
after  the  acts,  is  on  this  principle  an  evidence  that  it  was  not  waived. (e) 

§  84G.  (2)  But  where  the  defect  is  known  to  the  purchaser,  and  is  in 
its  nature  incurable,  there  no  such  expectation  can  arise,  and  much 
slighter  acts  will  operate  as  indications  of  an  intention  to  waive  the 
objection.  So  where  an  estate,  sold  as  freehold  and  leaseholds  attached, 
turned  out  to  be  nearly  all  leasehold,  and  this  clearly  appeared  as  a  de- 
fect which  could  not  be  cured,  and  the  purchaser  continued  to  treat,  up 
to  and  long  after  the  day  for  concluding  the  purchase,  on  points  of  title 
irrespective  of  this  objection  :  he  was  held  to  have  waived  it.(/)  So 
where  an  estate  was  subject  as  to  part  to  a  reservation  of  rights  of  sport- 
ing which  appeared  on  the  abstract,  and  which  the  vendor  could  not 
cure,  and  after  the  delivery  of  the  abstract  the  purchaser  took  posses- 
sion :  he  was  held  to  have  waived  his  right  to  object  to  the  reservation 
in  question. (^)  And  where  the  invalidity  of  a  fiat  on  which  the  title 
depended  was  known  to  the  purchaser,  his  granting  a  lease  of  the  pro- 
perty was  held  a  waiver.(/t)  Again,  where  the  defect  alleged  was  an 
erroneous  and  misleading  description  of  the  situation  of  a  house,  proceed- 
ing to  investigate  the  title  after  *this  was  known,  waived  all  ob-  r^jtop  i-i 
jection  on  the  score  of  misdescription. (A  L         J 

§  847.  So  with  regard  to  the  contract  itself, — if  the  defendant  con- 
tends that  it  is  a  nullity,  and  after  having  become  aware  of  the  facts  on 
which  he  relies  for  this  contention,  has  gone  on  acting  as  though 
there  were  a  subsisting  contract,  he  will  be  estopped  from  subsequently 
taking  the  objection. (^) 

§  848.  Wliere  either  by  the  terms  of  the  original  contract,  or  by  a 
subsequent  arrangement,  it  is  agreed  that  the  purchaser  shall  take  pos- 
session and  shall  be  entitled  to  a  good  title,  no  waiver  is  worked  by  the 
possession  or  by  any  acts  which  do  not  go  beyond  the  acts  of  a  person 
entrusted  with  the  possession  and  bound  to  take  care  of  the  estate.  So 
when  a  person  purchased  a  share  in  some  iron-works  to  which  a  good 
title  was  to  be  made  in  about  a  year,  and  it  appeared  to  be  the  intention 
of  both  parties  that  the  purchaser  should  previously  take  possession  and 
act  as  partner,  his  doing  so  was  no  waiver  of  his  right  to  a  good  title. (/) 

§  849.  In  Burroughs  v.  Oakley,(w)  the  original  contract  was  silent 
as  to  possession,  but  possession  having  been  taken  by  the  purchase!*,  and 
both  parties  having  for  more  than  a  year  subsequently  continued  nego- 

(e)  Calcraft  v.  Roebuck,  1  Yes.  Jun.  221. 

(/)  Fordyce  v.  Ford,  4  Bro.  C.  C.  494;  S.  C.  G  Yes.  G79. 

(ff)  Burnell  v.  Brown,  1  J.  &  W.  168. 

(/i)  Ex  parte  Sidebotham,  1  Mont.  &  Ayr.  G55 ;  Ex  parte  Barrington,  2  Mont.  & 
Ayr.  245. 

(i)  Stanton  v.  Tattersall,  1  Sm.  &  G.  529. 

{Jc)  Flint  Y.  Woodin,  9  Ha.  618 ;  Campbell  v.  Fleming,  1  A.  &  E.  40. 

(/)  Stevens  v.  Gujipy,  3  Russ.  171;  Margravine  of  Anspach  v.  Noel,  1  Mad.  3U'.. 
315.  ■■  (m)  3  Sw.  159. 


244      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

tiating  as  to  title,  Sir  Thomas  Plumer  concluded  that  possession  was 
prematurely  taken  with  the  consent  of  both  parties,  but  without  an  in- 
tention of  waiving  the  investigation  of  title. 

§  850.  (3)  Acts  of  ownership  on  the  part  of  a  purchaser  may  amount, 
in  the  contemplation  of  the  court,  to  a  declaration  that  he  considers 
himself  as  the  owner  of  the  property,  and  then  they  work  an  acceptance 
of  title  and  a  waiver  of  all  objections  :  or  secondly,  such  acts,  though 
r*Sr51  ^^^^^°ft  short  of  *this,  may  yet,  by  changing  the  property  which 
L  J  is  subject  to  the  vendor's  lien,  affect  that  security,  and  therefore 
furnish  a  motive  to  the  court  to  order  the  payment  into  court  of  the 
purchase-mon  ey .  (n\ 

§  851.  It  is  obvious  that  for  acts  to  amount  to  the  waiver  of  an  objec- 
tion before  it  is  known,  they  must  be  very  strong  and  distinct,(o) — such 
acts,  in  short,  as  are  equivalent  to  a  declaration  by  the  purchaser  that  he 
has  taken  the  estate  at  all  possible  risks,  and  considers  himself  as  the 
absolute  and  unconditional  owner  of  it,  and  so  preclude  any  investigation 
of  title  at  all.  Therefore  in  a  case  where  the  objections  were  not  known, 
the  stubbing  up  of  an  osier-bed  and  filling  up  a  pond,  though  held  to 
justify  an  order  for  payment  of  the  purchase-money  into  court,  and  for  a 
receiver,  were  not  held  to  amount  to  a  waiver  of  title.  (7;)) 

§  852.  Leaving  the  abstract  unobjected  to  for  two  years,  altering  the 
property,  letting  it,  and  apologizing  for  not  paying  the  purchase-money, 
which  was  of  course  only  payable  if  the  title  was  accepted,  were  consi- 
dered strong  acts  of  waiver.^^')  And  where  the  purchaser  was  in  pos- 
session twenty  years,  and  after  making  frivolous  objections  and  refusing 
any  further  explanation  of  them,  still  continued  in  possession,  the  right 
to  investigate  title  was  held  to  have  been  waived. (r)  Again,  the  like 
was  held  in  a  case  where  a  purchaser  continued  twenty-six  years  in  pos- 
session after  his  requisitions  of  title  were  sent  in,  and  had  paid  a  consider- 
able part  of  his  purchase-money  and  made  alterations,  (s)  In  another  case, 
the  master  of  the  rolls  expressed  an  opinion  that  the  purchaser's  having 
retained  the  abstract  for  five  months  and  made  no  objections  to  the  title, 
r*^rn  ^^*  simply  got  *the  vendor  to  verify  the  abstract  with  the  title- 
L         J  deeds,  was  a  waiver  as  to  title. (i!) 

§  853.  The  right  of  investigation  may  sometimes  be  waived  by  the 
silence  of  a  subsequent  agreement  concerning  it.  Thus  where  by  an 
agreement  for  the  sale  of  an  estate,  the  purchaser  was  entitled  to  evi- 
dence that  the  buildings  were  not  on  the  copyhold  part  of  the  property, 
which  except  to  that  extent,  the  vendor  was  not  to  be  called  on  to  dis- 
tinguish from  the  freehold ;  the  purchaser  asked  fqr  evidence  of  the 
identity  of  the  parcels  in  the  abstract  with  the  estate  sold  :  subsequently, 
by  a  supplemental  agreement,  the  purchaser  accepted  the  title,  subject 
to  the  production  of  a  declaration  of  the  identity  of  the  parcels  in  the 
deeds  and  the  lands  sold, — which  was  produced  and  approved  on  the 

(n)  Cutler  v.  Simons,  2  Mer.  103.  (0)  Dixon  v.  Astley,  1  Mer.  133. 

(p)  Osborne  v.  Harvey,  1  Y.  &  C.  C.  C.  116;  Small  v.  Attwood,  You.  506. 

(y)  Margravine  of  Anspacli  v.  Noel,  1  Mad.  310. 

(rj  Hull  V.  Laver,  3  Y.  &  C.  Ex.  191. 

(s)  Wallis  V.  Woodyear,  2  Jur.  N.  S.  U9,  (Wood,  V.  C.) 

(/)  Pegg  V.  Wisden,  IG  Bcav.  239. 


REFERENCE    OF    TITLE.  245 

purchaser's  belialf:  and  he  subsequently  objected  that  the  buildings 
were  on  the  copyhold  part  of  the  estate  :  it  was  held  that  this  term  of 
the  original  agreement  had  been  waived  by  the  silence  on  that  head  of 
the  supplemental  one.(t<) 

§  854.  On  the  other  liand,  the  mere  acquiescence  of  both  parties  in 
not  enforcing  the  completion  of  the  contract, (v)  the  continuing  a  treaty 
and  at  the  same  time  insisting  on  the  objection, (?r]  and  the  approval  of 
the  title  by  the  purchaser's  counsel, (:t-)  have  all  been  held  insufficient  to 
waive  the  purchaser's  right  to  investigate  the  title  of  the  vendor. 

§  855.  Conduct  may  waive  the  right  of  the  purchaser  of  a  lease  to  in- 
quire into  the  title  of  the  lessor,  which  does  not  waive  the  right  as  to 
the  title  of  the  lessee. 

§  85G.  So  where  13.  contracted  with  A.  to  take  an  assignment  of  a 
lease  when  executed,  and  inspected  the  lease  and  the  assignment  of  it 
to  A.,  and  subsequently  directed  A.  to  cause  an  assignment  to  himself 
to  be  endorsed  totidem  *verhis,  he  was  held  to  be  precluded  from  r^jcoeY-i 
calling  for  the  lessor's  title. (^)  And  again,  where  a  purchaser  L  J 
after  transmission  to  him  of  the  original  lease,  prepared  a  draft  assign- 
ment, and  made  various  objections  as  to  repairs  and  other  matters,  but 
did  not  require  the  production  of  the  lessor's  title,  it  seems  that  he  would 
have  been  held  to  have  waived  the  rights,  but  the  point  was  not  de- 
cided.(x) 

§  857.  In  a  recent  case,  Lord  Cranworth,  affirming  a  decision  of  Yice- 
Chancellor  Stuart,  held  that  joining  in  a  valuation,  advertising  the  pro- 
perty to  be  disposed  of,  and  other  like  acts  on  the  part  of  the  lessee, 
which  implied  that  nothing  remained  to  be  done  but  the  execution  of 
the  lease  amounted  to  a  waiver  of  his  right  to  call  for  the  lessor's  title,  (a) 

§  858.  In  analogy  with  the  distinction  established  by  these  cases  on 
conditions  of  sale  as  to  the  lessor's  title,  it  is  established  that  acts  may 
amount  to  a  waiver  of  a  right  to  investigate  the  title,  and  yet  not  compel 
the  purchaser  to  take  it  if  it  come  out  collaterally  that  the  vendor  has 
no  title.  Thus  in  Warren  v.  EichardsoUjfA)  the  purchaser  of  a  lease- 
hold interest  had  done  acts  which  the  court,  at  the  hearing  held  to  be  a 
waiver  of  the  right  to  investigate  the  title ;  but  it  appearing  on  the  re- 
port of  the  master,  to  whom  it  was  referred  to  settle  the  lease  and  to 
state  any  special  circumstances,  that  the  vendor  held  this  together  with 
other  leasehold  property  under  one  lease,  and  subject  to  one  proviso  for 
re-entry,  so  that  the  vendor,  who  was  plaintiff,  could  not  make  a  good 
title  :  the  court  refused  to  enforce  the  completion  of  the  contract  on  the 
defendant. 

§  859.  With  regard  to  the  proper  mode  of  pleading  that  the  right  to 

(u)  Dawson  v.  Brinckman,  3  De  G.  &  Sra.  3TG ;  S.  C.  3  M'X.  &  G.  53. 

(v)  Blachford  v.  Kirkpatrick,  G  Bcav.  232. 

Iw)  Knatchbull  v.  Grueber,  1  Mad.  153. 

(x)  Devcrell  v.  Lord  Bolton,  18  Yes.  505. 

(?/)  Smith  V.  Capron,  7  Ha.  185,  189. 

fz)  Clive  V.  Beaumont,  1  De  G.  &  Sm.  397. 

(a)  Simpson  v.  Sadd,  4  De  G.  M.  k  G.  6G5,  which  see  for  the  form  of  a  declara- 
tion that  the  right  to  call  for  the  lessor's  title  has  been  waived.  See  also  Ogilvie 
v.  Foljambe,  3  Mer.  OG.  (6)  You.  1. 


246      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

investigate  the  title  has  been  waived,  it  has  been  decided  that  it  is  not 
j-^qpo-i  enough  for  the  party  relying  on  such*waiver  to  allege  facts  from 
L  '  J  which  it  is  a  legal  inference ;  but  he  must  allege  the  facts  and 
that  there  has  thereby  been  such  waiver.  This  was  decided  by  Sir  J. 
L.  Knight  Bruce,  then  vice-chancellor,  in  Clive  v.  Beaumont,(c")  on  the 
ground  that  though,  as  a  general  principle,  it  is  not  the  ofl&ce  of  plead- 
ing to  state  inferences  of  law,  yet  that  where  facts  are  relied  on  to  rebut 
a  right  given  by  law  as  a  necessary  result  of  the  contract,  the  person 
whose  rights  are  thus  sought  to  be  excluded  is  entitled  to  have  his  atten- 
tion called  to  it  by  a  distinct  allegation. 

§  860.  The  inquiry  as  to  title  maybe  directed  by  the  court,  (1)  at  the 
hearing,  or  (2]  on  motion  before  the  hearing,  but  after  answer,  or  (3)  be- 
fore the  answer.  The  practice  of  allowing  this  inquiry  on  motion  was 
introduced  by  Lord  Thurlow.(fZ) 

§  861.  Where  an  inquiry  as  to  title  alone  is  directed  at  the  hearing, 
it  will  be  taken  as  excluding  all  other  questions  than  that  of  title,  so  that 
the  court  will  not  on  further  directions  enter  into  any  other  question  set 
up  as  a  defence  by  the  answer,  (e) 

§  862.  This  inquiry  may  be  directed  before  the  hearing,  where  the 
defendant  having  answered,  there  is  no  other  question  on  the  record  but 
simply  that  of  title  ;  or  there  being  such  other  question,  the  objection 
on  that  score  is  removed  by  consent.  (/)  Where  other  questions  are 
raised,  but  the  court  on  looking  into  the  answer  sees  that  they  are  merely 
frivolous,  and  entirely  unworthy  of  argument,  it  will  treat  them  as  no 
questions  at  all,  and  order  the  inquiry  as  if  they  had  not  been  raised. (r^) 
P^opQT  -^^^  unless  they  are  thus  *merely  frivolous,  even  though  the  con- 
•-  -I  tention  may  be  such  as  the  court  judges  unlikely  to  succeed,  the 
indulgence  of  an  inquiry  before  the  hearing  will  not  be  granted. (A) 

§  863.  Accordingly,  such  references  have  been  refused  where  there 
was  a  claim  for  compensation, (Q  even  though  the  defendant  submitted 
to  complete  his  agreement,(Z;)  where  laches  were  insisted  on  as  a  de- 
fence,0  where  there  was  a  question  as  to  the  production  of  a  lessor's 
title,(«i)  and  where  there  was  a  question  whether  there  was  any  subsist- 
ing contract. (ri) 

§  864.  By  questions  of  title  are  meant  those  which  can  only  properly 
become  the  subject  of  adjudication  upon  the  investigation  of  the  title, 
although  they  may  not  arise  on  the  abstract  taken  by  itself;  so  that 
where  the  validity  of  the  conditions  of  sale  being  admitted,  the  question 

(c)  1  De  G.  &  Sm.  397;  Gaston  v.  Frankum,  2  De  G.  &  Sra.  5G1. 

(d)  1  Sw.  551,  n. ; v.  Skelton,  1  Ves.  &  B.  517  ;  Eldridge  v.  Porter,  14  Ves. 

139.     See  also  Briscoe  v.  Brett,  2  V.  &  B.  377. 

(e)  Le  Grand  v.  Whitehead,  1  Russ.  309. 

(/)  Blyth  V.  Elrahirst,  1  V.  &  B.  1 ;  Paton  v.  Rogers,  1  V.  &  D.  351 ;  Moss  v. 
Matthews,  3  Ves.  279  ;  Wright  v.  Bond,  11  Ves.  39. 

(ff)  Withy  V.  Cottle,  T.  &  R.  78  ;  Boehm  v.  Wood,  1  J.  &  W.  419 ;  Boyes  v.  Lid- 
dell,  1  Y.  &  C.  C.  C.  133;  Wood  v.  Machii,  5  Ha.  158. 

(h)  Withy  V.  Cottle,  1  S.  &  S.  174;  Gordon  v.  Ball,  1  S.  &  S.  178 ;  Portman  v. 
Mill,  2  Russ.  570. 

(i)  Paton  V.  Rogers,  1  V.  &  B.  351.  (k)  Lowe  v.  Manners,  1  Mer.  19. 

(l)  Blyth  V.  Elmhirst,  1  V.  &  B.  1.  {m)  Gompertz  v. ,  12  Ves.  17. 

(«)  Morgan  v.  Shaw,  2  Mer.  138. 


REFERENCE    OF    TITLE.  247 

was  as  to  the  application  of  them,  the  question  was  held  to  be  one  of 
titlc.(o) 

§  8G5.  Where  the  circumstances  are  such  as  before  stated,  to  justify 
this  inquiry  on  motion,  the  court  will  make  it  on  such  an  application, 
even  though  the  question  in  dispute  may  be  one  which  could  be  conve- 
niently disposed  of  at  the  hearing  without  a  reference. (p) 

§  8GG.  An  inquiry  as  to  title  may  also  be  made  on  motion  before  an- 
swer, where  the  vendor,  being  plaintiff,  undertakes  to  do  all  such  acts 
for  the  purpose  of  executing  what  the  court  shall  think  right,  as  if  the 
answer  had  been  put  in,(^q'^  and  it  being  admitted  at  the  bar  that  there 
is  no  other  question  than  that  of  title. (;•)  Where  such  an  admission 
is  not  made,  the  motion  will  be  refused. (s)  Nevertheless  in  one  case,(^) 
the  vice-chancellor  of  England  held  that  after  such  *a  reference  r:i<oYA-i 
the  defendant  might  by  his  answer,  which  was  called  for  by  L  -• 
the  plaintiff,  make  any  defence  he  pleased,  and  was  not  confined  to  the 
question  of  title.  "It  does  not  appear,"  said  the  vice-chancellor,  "on 
the  face  of  the  order  of  reference,  that  the  defendant  did  not  object  to 
the  order  being  made,  or  that  he  said  that  there  was  no  objection  to  a 
specific  performance  except  the  objection  as  to  title."  It  seems  there- 
fore that  the  order  should  be  prefaced  with  such  a  declaration. 

§  867.  No  alteration  is  effected  in  this  practice  by  the  5th  of  the 
general  orders  of  the  9th  May,  1839. (^t) 

§  868.  The  order  for  reference  is  not  now  strictly  confined  to  an  in- 
quiry whether  a  good  title  had  been  made,  but  may  extend  to  all  that 
regards  the  title,  but  not  to  other  matters. (v)  Therefore  it  should  in- 
clude an  inquiry  as  to  the  time  at  which  a  good  title  was  shown, (zo)  at 
least  in  cases  where  the  question  of  title  is  the  only  one  in  dispute,  for 
in  other  cases  this  inquiry  is  omitted. (a;)  The  old  practice  on  this  point 
was  somewhat  variable,(_y)  but  the  present  course  is  as  above  stated.  As 
this  inquiry,  if  to  be  made  at  all,  should  be  directed  at  the  original  re- 
ference, the  court  will  not  make  it  subsequently  on  a  second  motion. (2) 

§  869.  On  the  same  principle  the  inquiry  may  extend  to  whether  it 
appeared  by  the  abstract  that  a  good  title  could  be  made. (a) 

§  870.  And  on  the  like  ground,  an  inquiry  was  added  whether  the  de- 
fendant objected  at  any  time  to  the  want  of  evidence  as  to  the  identity 
of  the  premises ;  but  an  inquiry  whether  the  abstract  was  perfect,  and  if 
deficient,  in  what  respects,  and  whether  it  was  ever  perfected,  was  con- 
sidered *not  so  connected  with  the  title  as  to  be  added  to  the  re-  r^r,^-,-, 
ference.(Z>)  L         J 

§  871.  The  inquiry  is  whether  the  vendor  can  make  a  good  title,  not 

(0)  Wood  V.  Mticlm,  5  Ha.  158.  (p)  Curling  v.  Flight,  5  Ila.  244,  248. 

(q)  Biilniauno  v.  Lumley,  1  V.  &  B.  224. 

(/•)  Per  Lord  Eldon,  in  1  Mer.  372.  (s)  Matthews  v.  Dana,  3  Mad.  4T0. 

(t)  Emery  v.  Pickering,  13  Sim.  583. 

Ill)  Boyes  v.  Liddell,  1  Y.  &  C.  C.  C.  133. 

(v)  Jennings  v.  llopton,  1  Mad.  211.  (ro)  Seton  on  Decrees,  244. 

(z)  Gibbins  v.  Northeastern  Metropolitan  District  Asylum,  11  Beav.  1. 

(.y)  Moss  V.  Matthews,  3  Yes.  279  ;  Gibson  v.  Clarke,  2  Y.  &  B.  103. 

(2)  Hyde  v.  Wroughton,  3  Mad.  279.         (a)  Jennings  v,  Hopton,  1  Mad.  211. 

(b)  Bennett  v.  Reus,  1  Ke.  405. 


248       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

wliether  he  could  do  so  at  the  date  of  the  contract;  aud  therefore  he  may 
make  out  his  title  at  any  time  before  the  report,  and  if  he  can  do  so  he 
will  be  entitled  to  a  decree, (c)  at  least  where  there  has  been  no  unrea- 
sonable delay,  and  time  is  not  material. ((/) 

§  872.  Accordingly,  the  court  often  allows  time  for  the  completion  of 
the  title  :  so  in  an  old  case,  the  court  more  than  once  allowed  the  vendor 
time  to  get  an  act  of  parliament  -Je)  and  in  a  recent  case,  where  upon  the 
face  of  the  contract  it  appeared  that  there  was  a  difficulty  in  the  plain- 
tiff's title,  Yice-Chancellor  Wood  refused  on  demurrer  to  stop  a  suit  for 
specific  performance,  on  the  ground  that  the  act  of  parliament  contem- 
plated had  not  been  obtained. (/)  So  in  another  case,  the  court  allowed 
the  vendor  time  to  procure  a  small  part  of  the  estate  -Jg^  and  in  another 
case,  allowed  a  limited  time  to  procure  the  concurrence  of  an  assignee  in 
Insolvency.  (7A 

§  873.  The  court  grants  indulgence  in  point  of  time  for  the  getting 
over  any  difiiculties  in  matters  of  conveyance,  as  much  where  the  vendor 
is  the  plaintiff,  as  where  the  suit  is  instituted  by  the  purchaser.(j) 

§  87J:.  But  this  indulgence  will  not  be  granted  where  the  defect  to  be 
remedied  was  known  to  the  vendor  or  his  agent,  and  was  concealed  from 
r^^'-c}-]  the  purchaser  :(^')  nor  where  *there  has  been  great  delay,  aud 
L  "^-1  there  is  no  probable  chance  of  the  difficulty  being  got  over  in  a 
short  time  ;(^)  so  that  a  purchaser  under  the  court  would  be  discharged  if 
it  appeared  requisite  to  his  title  that  an  account  should  first  be  taken  in 
a  suit  to  be  instituted,(7?i)  or  that  a  suit  should  be  instituted  to  try 
whether  certain  devisees  were  trustees  for  the  seller  or  not.(//) 

§  875.  Nor  will  it  grant  additional  time  where  the  vendor  proposes  not 
to  cure  a  defect  in  the  title  which  he  had  at  the  sale,  or  to  produce  fresh 
evidence  in  support  of  it,  but  to  get  an  entirely  new  title  :  for  the  court 
will  not  force  a  buyer  to  take  an  estate  from  a  vendor  who  is  neither 
owner  of  it  nor  possessed  of  the  power  by  the  ordinary  course  of  law  or 
equity  to  make  himself  so,(o)  for  it  is  not  the  purpose  of  the  court  to 
enable  one  man  to  sell  another  man's  estate. Q))  As  to  this  point,  it  has 
been  decided  that  a  title  from  possession  defeasible  by  the  crown  on 
account  of  the  alienage  of  the  original  owner,  cured  by  a  grant  from  the 
crown  whilst  the  question  was  in  the  master's  office,  was  the  same  title, 
and  the  purchaser  was  compelled  to  take  it.(^q)  And  the  fact  that  the 
vendor  may  have  had  no  title  to  a  small  part  of  the  estate  at  the  time  of 

(c)  Bennet  College  v.  Carey,  3  Bro.  C.  C.  390  ;  Wynn  v.  Morgan,  1  Ves.  202  ; 
Mortlock  V.  Buller,  10  Ves.  292,  315 ;  Vancouver  v.  Bliss,  11  Ves.  458. 

(d)  Langford  v.  Pitt,  2  P.  Wms.  629. 

(e)  Lord  Stourton  v.  Meers,  cited  2  P.  "Wms.  630.  See  also  Lord  Braybroke  v. 
Inskip,  8  Ves.  417,  436;  Coffin  v.  Cooper,  14  Ves.  205. 

(f)  Devenish  v.  Brown,  26  L.  J.  Ch.  23,  (Wood,  V.  C.) 
[[/)  Chamberlain  v.  Lee,  10  Sim.  444. 

(A)  Sidebotham  v.  Barrington,  4  Beav.  110. 
(i)  Duke  of  Beaufort  v.  Glynn,  3  Sm.  &  G.  213. 
(/c)  Dalby  v.  Pullen,  3  Sim.  29  ;  S.  C.  1  R.  &  My.  296. 

(l)  Fraser  v.  Wood,  8  Beav.  339.  (m)  Magenuis  v.  Fallon,  2  Moll.  561. 

(n)  Noel  V.  Hoy,  Sug.  Vend.  293. 

(o)  Tendring  v.  London,  2  Eq.  Cas.  Abr.  680,  pi.  9;  Magennis  v.  Fallon,  2  Moll. 
561.  (p)  Chamberlain  v.  Lee,  10  Sim.  444. 

{q)  Eyston  v.  Simmons,  1  Y.  k  C.  C.  C.  608. 


REFERENCE    OF    TITLE.  249 

sale,  and  subsequently  purcliases  it,  will  not  make  the  title  a  new  one 
within  this  rule.(;') 

§  870.  But  oven  where  the  vendor  has  no  title  at  all  at  the  time  of 
sale,  so  that  the  purchaser  may  withdraw  if  he  choose,  yet  if  he  acquiesce 
in  steps  taken  by  the  vendor  to  get  in  the  estate,  he  will  thereby  have 
waived  the  want  of  mutuality,  and  be  bound  to  accept  the  title  if  made 
out  at  the  liearing.(.s) 

*§  877.  The  master's  report,  and  now  the  certificate,  should,  r:j:o-q-i 
it  seems,  be  on  the  fact  of  title  aye  or  no  :  and  accordingly  it  is  L  -• 
improper  to  report  that  a  defendant  with  the  concurrence  of  a  third  party 
could  make  a  good  title,(<)  or  that  he  could  do  so  subject  to  the  perform- 
ance of  certain  conditions. (?<) 

§  878.  Where  the  report  is  in  favour  of  the  title,  but  the  court  thinks 
it  too  doubtful  to  force  on  a  purchaser,  the  court  may  dismiss  the  bill 
without  allowing  the  exceptions,f  i')  and  either  withr«-)  or  without  costs,(x) 
as  the  court  may  think  right. 

§  879.  If  exceptions  to  a  report  of  good  title  are  overruled,  no  other 
objections  to  the  title  can  be  made  :  but  if  the  exceptions  are  allowed  and 
a  new  abstract  delivered,  further  objections  may  be  brought  in.(_y) 

§  880.  The  court  referred  back  the  question  of  title  where  the  master 
was  satisfied  with  evidence  of  a  fact  with  which  the  court  was  not  satis- 
fied, the  vendor  ofi:'ering  to  produce  further  evidence  ;(s)  also,  where  by 
expressing  an  opinion  in  favour  of  some  part  of  the  title,  the  master  had 
prevented  the  vendor  from  showing  that  the  title  was  good,  even  sup- 
posing that  part  not  to  be  so.(fl) 

§  881.  A  reference  back  may  be  made  without  a  fresh  motion,  on  the 
hearing  of  exceptions,  whether  the  original  reference  was  made  on  motion 
or  by  decree. (i) 

*  882.  Even  where  the  report  was  against  the  title  and  the  defect  was 
cured  at  the  hearing  on  further  directions,  the  court  compelled  specific 
performanee,M  but  without  giving  time  for  further  proceedings  :  but  if 
there  was  a  ^question  whether  the  defect  was  in  part  cured,  the  r^n-A-\ 
court  would  refer  it  back  to  the  master  to  review  his  report  with  L  J 
the  additional  circumstances. (rZ) 

§  883.  In  the  inquiry  as  to  the  time  when  a  good  title  was  shown  is 
involved  the  question,  what  is  showing  a  good  title.  In  relation  to  this, 
two  distinctions  are  to  be  borne  in  mind,  the  one  between  questions  of 
title  and  of  conveyance,  the  other  between  questions  of  title  and  of  evi- 
dence. 

(r)  Cliambcrlain  v.  Lcc,  10  Sim.  444. 

(5)  nogpirt  V.  Scott,  1  R.  &  Mj.  293 ;  Salisburv  v.  Hatcher,  2  Y.  &  C.  C.  C.  54. 
See  ante,  |  293. 

(t)  Lewis  V.  Loxam,  1  Mer.  179. 

(w)  Magennis  v.  Fallon,  2  Moll.  561,  575,  583. 

(r)  Bickner  y.  Milner,  1  Ha.  578,  n.  (w)  S.  C. 

(x)  Willcox  V.  Bellairs,  T.  &  R.  491.  (i/)  Brooke  v. ,  4  Mad.  212. 

(z)  Andrew  v.  Andrew,  3  Sim.  390. 

(a)  Egerton  v.  Jones,  3  Sim.  392  ;  S.  C.  1  R  &  My.  G94  ;  Fortman  y.  Mill,  1  R.  & 
My.  696;  Fildes  v.  Hooker,  2  Mer.  424.     See  also  Jeudwiue  y.  Alcock,  1  Mad.  597. 

(b)  Curling  y.  Flight,  2  PhiL  613.  (c)  Paton  v.  Rogers.  6  Mad.  256. 
(d)  Esdaile  y.  Stephenson,  6  Mad.  360. 


250      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  884.  As  to  the  first,  the  rule  was  thus  stated  by  Lord  Eldon  in  Lord 
Braybroke  v.  Inskip,(c) — "  As  to  the  question  whether  the  abstract  was 
complete,  the  abstract  is  complete  whenever  it  appears  that  upon  certain 
acts  done,  the  legal  and  equitable  estates  will  be  in  the  purchaser.  That 
may  be  long  before  the  title  can  be  completed."  So  that  a  good  title  is 
shown  when  it  appears  from  the  abstract  that  the  vendor  has  the  whole 
equity,  and  in  what  persons  the  outstanding  portion  of  the  legal  estate  is 
vested. (/)  The  acts  to  be  done,  of  which  Lord  Eldon  speaks,  must  be 
confined  to  acts  the  performance  of  which  the  vendor  can  enforce  in  a 
court  of  justice,  as,  for  instance,  by  calling  on  a  trustee  to  convey  the 
estate  vested  in  him.  Therefore,  where  an  estate  tail  was  outstanding 
in  a  person  who  had  consented  to  bar  it,  but  was  not  in  any  way  a  trus- 
tee for  the  vendor,  the  court  held  that  the  title  was  not  made  out  till  the 
recovery  had  been  fully  perfected.  (^) 

§  885.  In  Esdaile  v.  Stephenson, (A)  Sir  John  Leach,  after  consultation 
with  the  lord  chancellor,  laid  down  the  rule,  "  that  where  a  necessary 
party  to  the  title  was  neither  in  law  nor  equity  under  th^  control  of  the 
vendor,  but  had  an  independent  interest,  unless  there  was  produced  to 
the  master  a  legal  or  equitable  obligation  on  the  part  of  the  stranger  to 
P^q-Tc-i  joiii  iQ  tlie  sale,  the  master  ought  to  report  *against  the  title  ; 
L  -I  otherwise,  where  a  necessary  party  to  the  title  was  under  the  legal 
or  equitable  control  of  the  vendor  as  a  mortgagee,  where  the  master  might 
well  report  that  upon  payment  of  the  mortgage  a  good  title  could  be  made." 

§  886.  The  rule  is  further  illustrated  by  other  cases.  In  oue,(i)  it 
was  held  to  be  no  objection  to  title,  that  a  satisfied  term  was  outstanding 
in  a  lunatic  against  whom  no  commission  had  issued,  so  that  there  was 
then  no  person  competent  to  make  the  assignment :  and  in  another  case,(7j) 
the  legal  estate  of  a  moiety  of  the  property  was  outstanding  in  a  married 
woman  or  those  claiming  under  her,  but  she  being  under  the  order  of 
the  court  to  convey  was  bound  by  it,  and  became  absolutely  a  trustee 
for  the  purchaser  under  the  order  of  the  court :  the  title  was  therefore 
held  good,  but  without  prejudice  as  to  the  question  of  conveyance. 

§  887.  It  appears  to  have  been  considered  by  Sir  L.  Shadwell  to  be 
sufficient  if  the  abstract  showed  that  the  outstanding  legal  estate  had 
been  formerly  vested  in  a  trustee  for  the  vendor,  and  that  the  abstract 
was  then  complete,  though  a  supplemental  abstract  was  necessary  to  trace 
the  legal  estate.  (Z)  But  this  decision  seems  at  variance  with  the  rule 
enunciated  by  him  in  the  same  case,  of  which  one  condition  is  that  the 
abstract  must  disclose  in  whom  the  legal  estate  is  vested,  not  in  whom 
it  was  formerly  vested.  And  accordingly,  Lord  Gifi"ord  held  that  where 
an  abstract  only  showed  that  the  legal  estate  had  long  since  been  vested 
in  persons  who  would  be  trustees  for  the  vendor,  but  did  not  show  in 
whom  the  legal  estate  was  then  vested,  the  defect  was  one  of  title  and 
not  of  conveyance. (?h) 

(e)  8  Ves.  436. 

{/)  Avarne  v.  Brown,  14  Sim.  303.  (o)  Lewin  v.  Guest,  1  Russ.  325. 

(A)  G  Mad.  366.  (i)"  Berkeley  v.  Danh,  16  Ves.  380. 

(k)  Jumpson  v.  Pitcher,  1  Coll.  C.  C.  13.         (l)  Avarne  v.  Bro-\vn,  14  Sim.  303. 
(m)  Wjmne  v.  Griffith,  1  Russ.  283.     See  further  as  to  what  is  a  perfect  ab- 
stract, per  Wigram,  V.  C,  in  Morley  v.  Cook,  2  Ha.  1 11. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  251 

§  888.  It  is  evident  further  that  there  is  a  distinction  *to  be  ^■:^;o-r'-^ 
drawn  between  matters  of  title  and  of  the  evidence  whereby  that  L  '^  J 
title  is  supported.  The  verification  of  the  abstract  may  be  either  the 
one  or  the  other;  thus,  the  verification  of  the  deeds  stated  in  the  abstract 
is  matter  of  evidence;  whilst  on  the  other  hand,  the  proof  of  a  fact  essen- 
tial to  the  title  which  can  only  be  proved  by  evidence  documentary  or 
oral, — as,  for  example,  the  identity  of  a  person  or  of  parcels  apparently 
different  on  the  deeds, — is  a  matter  of  title. (?t) 


♦CHAPTER   IV.  [*377] 

OF   INTEREST,    RENTS,  DETERIORATION,    AND   PAYMENT   INTO   COURT. 

§  889.  The  result  in  equity  of  a  contract  of  sale,  is  that  the  thing  sold 
thereupon  becomes  the  property  of  the  purchaser,  and  the  purchase-money 
the  property  of  the  vendor ;  whence  it  follows  that  the  purchaser  is  en- 
titled to  the  rents  of  the  estate  from  the  time  fixed  for  completion,  and 
the  vendor  is  entitled  to  interest  on  the  purchase-money  from  the  same 
time.(o)  In  a  word,  the  estate  and  the  purchase-money  are  things  mutually 
exclusive,  and  neither  party  can  at  the  same  time  be  entitled  to  the  enjoy- 
ment of  both. 

§  890.  The  most  convenient  plan  of  considering  the  rather  complicat- 
ed questions  which  arise  in  respect  of  the  rights  of  the  vendor  and 
purchaser  to  the  interest  on  the  purchase-money  and  the  rents  of  the 
estate  respectively,  and  also  in  respect  of  any  deterioration  happening  to 
the  estate,  will  be  to  consider  them  under  the  following  circumstances  : — 
(1)  Where  the  vendor  is  in  receipt  of  the  rents  and  profits,  and  the 
purchase-money  remains  unpaid  in  whole  or  in  part.  (2)  Where  the 
vendor  is  in  the  actual  enjoyment  of  the  estate,  whether  the  purchase- 
money  be  or  be  not  paid.  (3)  Where  the  purchaser  is  in  possession,  and 
the  purchase-money  remains  unpaid  in  whole  or  in  part. 

§  891.  (1)  Prima  facie,  and  in  the  absence  of  stipulation,  p:jcq7q-i 
*the  time  fixed  for  the  completion  of  the  contract  is  the  time  from  L  J 
which  the  purchaser  is  entitled  to  the  rents  and  is  liable  to  the  payment 
of  interest.     But  this  is  liable  to  exceptions. 

§  892.  Where  the  interest  is  much  more  in  amount  than  the  rents 
and  profits,  and  the  delay  in  completion  is  clearly  made  out  to  have  been 
occasioned  by  the  vendor,  the  court,  to  prevent  the  vendor  from  gaining 
an  advantage  by  his  own  wrong,  gives  him  no  interest,  but  leaves  him 
in  possession  of  the  interim  rents. (6)  In  such  cases,  the  day  at  which 
the  interchange  of  properties  is  treated  as  taking  place,  is  removed  from 
the  time  fixed  for  completion  to  the  time  at  which  a  good  title  is  first 
shown. ((•) 

(n)  Sherwin  v.  Shakspeare,  17  Bear.  2G7,  275. 

(a)  See  Inst.  iii.  24,  3.  {h)  Esdaile  v.  Stephenson,  1  S.  &  S.  122. 

(c)  Jones  v.  Mudd,  4  Russ.  118  ;  Paton  v.  Rogers,  G  Had.  236      It  seems  pre- 


252      I'RY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  893.  In  a  case((/)  where  a  vendor  bad  retained  possession  of  tlie 
whole  of  the  estate  and  of  one-third  of  the  purchase-money  for  fifteen 
years,  and  the  delay  was  wholly  due  to  his  wrongful  conduct,  Sir 
Thomas  Plumer,  not  feeling  himself  justified  in  removing  the  time  for  the 
interchange  of  properties  from  the  time  fixed  for  completion,  endeavoured 
to  meet  the  equity  of  the  ease  by  giving  the  purchaser  the  whole  of  the 
rents  and  interest  on  one-third  of  the  rents  in  each  year  from  the  time 
of  their  accruing. 

§  894.  Again,  where  the  title  is  made  out  in  the  master's  office,  or 
now  in  chambers,  the  day  when  the  title  is  made  out  is  the  day  on  which 
the  purchaser  is  bound  to  complete.  Hence,  up  to  that  day  the  vendor 
is  entitled  to  the  rents,  and  the  purchaser  to  interest  on  the  deposit  paid 
to  the  vendor  ;  and  from  that  day  the  purchaser  takes  the  rents  and  pays 
the  vendor  interest  on  the  unpaid  balance  of  the  purchase-money. (<;) 

*§  '^^^-  -^^^  ^^  where  a  suit  was  instituted  for  the  specific 
L  -J  performance  of  a  contract  to  buy  a  mill,  and  the  decree  was  made 
in  February,  1854,  but  a  good  title  was  not  shown  till  December  of  that 
year,  and  a  question  arose  as  to  who  was  to  bear  the  expenses  and  out- 
goings belonging  to  the  mill,  and  to  the  repairs  and  sustentation  of  the 
premises  and  the  machinery.  Sir  John  Romilly  decided  that  these  must 
be  borne  by  the  vendor  up  to  the  time  at  which  a  purchaser  could  pru- 
dently take  possession,  which  is  the  time  at  which  a  good  title  is  shown, 
and  after  that  by  the  purchaser. (/") 

§  896.  Where,  however,  the  title  has  not  been  made  out  till  after 
suit,  but  the  delay  has  arisen  from  the  purchaser's  raising  other  points 
which  made  the  suit  necessary,  then  the  delay  not  being  the  fault  of  the 
vendor,  interest  will  run  from  the  day  fixed  for  completion. (f^) 

§  897.  Further,  the  general  principle  may  be  excluded  by  express 
stipulation,  as  where  the  conditions  of  sale  reserved  the  rents  to  the  vendor, 
which  was  held  to  exonerate  the  purchaser  from  the  payment  of  interest 
on  the  unpaid  purchase-money. (A) 

§  898.  Though,  as  we  have  seen,  the  purchaser  is7J/'i?«a/oc«'e  obliged 
to  pay  interest  on  the  unpaid  purchase-money,  he  is  discharged  from 
this  liability  where  the  purchase-money  has  been  appropriated  by  him 
and  has  been  unproductive,  and  notice  to  this  effect  has  been  given  by 
the  purchaser  to  the  vendor.(?)  "  Where  nothing  appears  to  occasion 
the  delay,"  said  Lord  Cottenham,(/i:)  "  the  rule  no  doubt  is,  that  if  the 
purchaser,  who  on  the  face  of  the  ^contract  is  under  the  neces- 
L  J  sity  of  paying  on  a  certain  day,  sets  apart  his  money,  and  gives 
notice  that  it  is  ready,  interest  stops  from  that  time,  provided  it  be 

viously  to  have  been  held  that  interest  necessarily  ran  from  the  date  for  comple- 
tion. See  Wilson  v.  Clapham,  1  J.  &  W.  3G ;  per  Sir  T.  Plumer,  in  Burton  v. 
Todd,  1  S\v.  2G0. 

(d)  Burton  v.  Todd,  1  Sw.  255. 

(e)  Pincke  v.  Curteis,  4  Bro.  C.  C.  333  ;  Enraght  v.  Fitzgerald,  2  Dr.  &  W.  43. 
(/)  Carrodus  v.  Sharp,  20  Beav.  56.  (cf)  Monro  v.  Taylor,  3  M'N.  &  G.  n3. 
(A)  Brooke  v.  Champernowne,  4  CI.  &  Fin.  589,  611. 

(i)  Powell  V.  Martyr,  8  Ves.  146  ;  Boberts  v.  Massey,  13  Ves.  5G1 ;  Dyson  v. 
Hornby,  4  De  G.  &  Sm.  481;  Ilowland  v.  Norris,  1  Cox,  59;  Ptegent's  Canal  Com- 
pany V.  Ware,  23  Beav.  575. 

(k)  In  De  Visme  v.  De  Visme,  1  M'N.  &  G.  352. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  253 

shown  that  he  made  no  interest  of  it."  And  even  in  contracts  by  rail- 
way companies  taking  land  under  their  compulsory  powers,  where  the 
owner  makes  default  in  completing  the  sale,  interest  will  cease  upon  an 
appropriation  of  the  purchase-money,  with  notice  that  it  is  unemployed. (?] 

§  899.  Where  the  purchaser  makes  any  profit  on  any  part  of  the 
appropriated  purchase-money,  he  is  discharged  from  the  payment  of  in- 
terest only  in  respect  of  the  purchase-money  on  which  he  has  made  no 
interest.  Thus  where  a  purchaser,  on  entering  into  possession,  paid  the 
money  into  his  banker's,  and  gave  the  vendor  notice  that  he  was  ready 
to  invest  in  such  manner  as  the  vendor  should  require ;  and  during  the 
investigation  of  the  title  he  kept  a  balance  at  his  banker's  equal  to  the 
purchase-money,  except  on  four  days,  when  it  was  a  little  less  :  the  vice- 
chancellor  said  it  was  clear  that  the  purchaser  had  made  some  profit  with 
the  money,  ''  first,  because  his  balance  was  in  a  small  degree  and  for  a  few 
days  reduced  below  the  amount  of  the  purchase-money,  but  principally 
because  the  purchase-money  supplied  the  place  of  that  balance  which  he 
must  otherwise  .have  maintained  at  his  banker's  /'  he  therefore  directed 
an  inquiry  as  to  the  average  balance  which  the  purchaser  had  maintained 
at  his  banker's  for  the  three  years  preceding  the  purchase,  and  the  average 
balance  during  the  period  of  the  investigation  of  the  title,  and  declared 
that  in  respect  of  the  difference  between  those  balances  he  was  not 
chargeable  with  interest  on  his  purchase-money.(??i) 

§  900.  Where  conditions  of  sale  stipulate  for  the  payment  of  interest 
by  the  purchaser  from  the  day  appointed  for  completion,  from  whatever 
cause  the  delay  may  arise,  *it  was  formerly  held  that  the  fact  |-^q„^-. 
that  the  delay  arose  on  the  part  of  the  vendor  did  not  excuse  the  L  ^  J 
purchaser  from  the  terms  of  the  conditions,  and  that  accordingly  he  was 
bound  to  pay  interest  :(?()  and  in  a  case(o^  where  conditions  of  sale, 
under  the  court,  stipulated  for  payment  of  the  purchase-money  on  a  cer- 
tain day,  and  if  from  any  cause  whatever  it  should  not  then  be  paid, 
that  interest  should  be  paid  at  £5  per  cent. ;  and  there  was  great  diffi- 
culty and  delay  on  the  vendor's  part,  and  the  purchaser  had  entered  into 
possession,  Lord  Langdale  ordered  the  payment  of  interest  according  to 
the  contract,  but  without  prejudice  to  any  application  for  compensation. 

§  901.  On  the  other  hand,  in  a  case(^:»)  where  there  was  a  stipulation 
that  if,  by  reason  of  any  unforeseen  or  unavoidable  obstacles,  the  pur- 
chase should  not  be  completed  by  the  day  fixed,  the  purchaser  should 
from  that  day  pay  interest  at  £5  per  cent,  on  his  purchase-money  and  be 
entitled  to  the  rents,  and  the  vendor  did  not  show  a  good  title  till  long 
after  the  specified  day,  Sir  J.  Leach  held  that  the  general  rule  applied, 
and  that  the  stipulation  would  not  make  interest  run  before  the  comple- 
tion of  the  title,  but  only  aff"ect  its  rate.  And  in  the  case  of  De  Visme  v. 
De  Yisme,(j)  where  the  effect  of  such  conditions  was  very  elaborately 

(I)  Regent's  Canal  Company  v.  Ware,  23  Beav.  575. 
(m)  Winter  v.  Blades,  2  S.  &  S.  39.'?. 

(n)  Esdaile  v.  Stei)henson,  1  S.  &  S.  122,  and  see  Lord  St.  Leonards'  observa- 
tions on  this  point,  Vend.  529,  et  seq. 

(o)  GreenAvood  v.  Churchill,  8  Beav.  413. 

(p)  Monk  V.  Huskisson,  4  Russ.  121,  n.  (q)  1  M-N.  i  G.  33G. 

December,  1858. — 17 


251      rilY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

considered  by  Lord  Cottenham,  liis  lordship  held  that  a  clause  for  pay- 
ment of  interest  from  the  day  appointed  for  completion  in  case  of  delay, 
from  "whatever  cause  the  delay  might  have  arisen,  did  not  apply  to  a 
case  of  the  vendor's  own  default,  but  that  in  that  case  interest  ran  only 
from  the  time  when  a  good  title  was  shown,  "  There  are  two  ways," 
said  his  lordship, (r)  '<  in  which  this  case  may  be  met  in  argument  and 
r*qQ9i  ^PO'^  principle.  It  may  either  *be  considered  that  that  which 
L  ""^-l  has  happened  is  not  within  the  contract, — that  is,  that  the  party 
never  did  mean  to  contract  that  he  would  pay  interest,  although  he 
might  be  prevented  from  having  the  benefit  of  his  purchase  by  the  de- 
fault of  the  vendor,  and  in  this  view  it  is  the  ordinary  case  of  doing  jus- 
tice between  the  parties,  an  event  having  arisen  which  is  not  expressly 
provided  for  by  the  contract :  or  it  may  be  considered  that  interest  must 
be  paid  upon  the  purchase-money,  according  to  the  terms  of  the  contract, 
although  the  vendor  has  not  performed  his  part  of  the  contract,  and  the 
purchaser  has  been  thereby  exposed  to  damage  (the  damage  being  the 
difference  between  the  interest  and  the  annual  value  of  the  property  :) 
and  then,  although  this  is  a  departure  from  the  terms  of  the  previous 
contract,  which  the  court  would  regard  as  a  bar  to  decreeing  a  specific 
performance,  yet  that  the  court  will  in  this  case  regard  it,  by  giving  to 
the  purchaser  compensation  for  the  loss  he  has  sustained  by  the  non- 
performance of  the  whole  contract  by  the  vendor."  "  My  opinion,"  said 
his  lordship,  in  conclusion, (.s)  <'  is  that  the  vendors  being  in  default,  the 
delay  having  been  occasioned  by  their  not  performing  their  part  of  the 
contract,  are  not  to  exact  from  the  purchaser  the  payment  of  interest 
until  the  time  they  showed  a  good  title  on  their  abstract :  the  effect  of 
that  is  to  postpone  the  day  agreed  on  for  the  completion  of  the  contract 
until  the  time  when  the  vendors  put  themselves  right,  and  showed  their 
title  to  be  good  on  the  abstract.  The  result  therefore  is,  that  until  that 
time  there  would  be  no  demand  to  be  made  by  the  vendors  for  the  pay- 
ment and  therefore  the  interest  which  was  to  stand  in  the  place  of  that 
payment  had  not  commenced  to  run :  it  did  run  when  they  showed  a 
good  title,  and  not  before." 

§  902.  The  cases  at  law  which  have  decided  that  the  exception  in  a 
charter-party  as  to  pirates  will  not  be  held  *to  exempt  the  owners 
L  "^  -J  from  liability,  where  the  ship  has  fallen  into  the  hands  of  pirates 
by  the  master's  negligence,(<)  and  that  a  stipulation  in  a  bill  of  lading 
exempting  the  carrier  from  liability  in  respect  of  leakage  and  breakage 
will  yet  not  comprise  leakage  and  breakage  caused  by  his  negligence  or 
that  of  his  servants, (w)  seem  to  furnish  close  analogies  with  the  decision 
of  De  Visme  v.  De  Visme.  It  is  in  fact  an  instance  of  the  general 
principle,  that  no  man  shall  take  advantage  of  his  own  wrong. 

§  903.  To  bring  a  case  within  the  principle  thus  established,  it  is  not 
necessary  that  the  default  on  the  part  of  the  vendor  should  be  wilful : 
if  it  arise  from  negligence,  it  will  amount  to  the  same  thing.(t;) 

(r)  p.  348.  (s)  p.  353. 

m  Abbott  on  Shipping,  9tli  edit.  317;  De  Ilotlischild  v.  Roy.al  Mail  Steam 
Packet  Company,  1  Exch.  T36.  (u)  Phillips  v.  Clark,  26  L.  J.  C.  P.  168. 

(v)  Robertson  v.  Skelton,  12  Beav.  363;  Sherwin  v.  Shakspeare,  17  Beav.  267  ; 
S.  C.  5  De  G.  M.  &  G.  517. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  255 

§  904.  The  rule,  however,  is  one  wliich  must  be  acted  upon  with 
some  caution.  It  cannot  be  hiid  down  tliat  in  all  cases  where  a  sufficient 
abstract  is  not  delivered  in  time,  the  vendor  is  to  lose  the  interest  which 
he  has  stipulated  for :(«;)  and  it  is  clear  that  delay  arising  from  mere 
accident,  or  from  something  which  the  vendor  could  not  have  guarded 
against,  or  occasioned  by  the  state  of  the  title,  falls  within  the  terms  of  the 
condition,  and  does  not  deprive  the  vendor  of  his  right  to  interest  :(jc) 
and  so  in  a  case  where  this  condition  was  inserted,  and  delay  arose  from 
circumstances  under  which  the  approbation  of  the  court  (which  was 
necessary  to  the  sale)  was  to  be  obtained,  and  neither  party  was  to 
blame,  the  vendors  were  held  to  be  entitled  to  interest  by  force  of  this 
condition,  though  it  *greatly  exceeded  the  amount  of  the  rents  r^^ooj^-i 
and  profits  of  the  land.(,y)  L         J 

§  905.  The  condition  of  course  applies  where  the  delay  arises  from  an 
untenable  objection  taken  on  the  part  of  the  purchaser  1(2)  it  operates 
also  where  the  delay  arises  from  the  act  of  God,  as  the  death  of  the 
vendor. (a) 

§  900.  The  court  will  construe  a  stipulation  fixing  the  time  from 
which  interest  is  to  run  in  connection  with  another  fixing  the  time  for 
the  delivery  of  the  abstract :  so  that  where  there  is  a  stipulation  that 
the  abstract  shall  be  delivered  by  a  certain  day,  and  interest  begin  to 
run  from  another  and  subsequent  day,  and  a  perfect  abstract  is  in  fact 
not  delivered  till  after  the  time  fixed  for  that  purpose,  interest  will  not 
run  from  the  day  specified  in  that  behalf,  but  from  a  day  so  long  after 
the  actual  delivery  of  a  perfect  abstract,  as  the  day  stipulated  for  the 
running  of  interest  was  after  the  day  stipulated  for  the  delivery  of  the 
abstract.  (Z>) 

§  907.  The  amount  on  which  the  purchaser  pays  interest  is  the  pur- 
chase-money less  the  deposit :  and  this  applies  even  where  the  suit  may 
have  been  made  necessary  by  the  purchaser's  conduct.(c) 

§  908.  The  vendor  is  not,  it  seems,  liable  to  pay  interest  on  the  de- 
posit, if  the  contract  proceed. ((A 

§  909.  The  rate  of  interest  usually  allowed  is  £4  per  cent.(e)  But 
this,  of  course,  may  be  varied  by  contract. 

§  910.  In  one  case(/)  £5  per  cent,  was  given  where  the  circumstances 
did  not  justify  the  delay  in  paying  the  money,  the  Lord  Chief  Baron 
observing,  "  that  he  had  always  been  *of  opinion  that  a  party  p^^^^.. 
withholding  money  from  a  person  entitled  to  it  ought  to  pay  to  L  '  J 
the  person  thus  injured  the  interest  which  he  might  have  made  of  it,  if 

(w)  Rowley  v.  Adams,  12  Beav.  476.  See  also  Cowpe  v.  Bakewell,  13  Bear, 
421 ;  Dyson  v.  Hornby,  4  De  G.  &  Sra.  481. 

(x)  Sherwin  v.  Shakspeare,  17  Beav.  267;  S.  C.  5  De  G.  M.  &  G.  517  ;  Bircli  v. 
Podmore,  Sw^.  Vend.  521;  0.x:enden  v.  Lord  Falmouth,  id.  523. 

(y)  Ex  parte  the  Dean  of  Durham,  2  Jur.  N.  S.  345,  (Stuart,  V.  C.) 

(z)  Storry  v.  Walsh,  18  Beav.  559. 

fa)  Bannerman  v.  Clarke,  3  Drew,  632. 

lb)  Sherwin  v.  Shakspeare,  5  De  G.  M.  &  G.  517,  particularly  536. 

(c)  Bridges  v.  Robinson,  3  Mer.  694.  (rf)  S'ug.  Vend.  524. 

(e)  Calcraft  v.  Roebuck,  1  Ves.  Jun.  221 ;  Seton,  Deer.  249. 

(/)  Burnell  v.  Brown,  1  J.  &  W.  168. 


256      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

it  had  been  paid  before. "(^)     But  this  does  not  appear  to  be  the  rule  of 
the  court. (7i) 

§  911.  The  fact  that  a  purchaser  has  been  making  profit  by  his  money 
whilst  it  is  at  his  risk,  and  he  is  liable  to  interest,  is  no  ground  for  in- 
creasing the  rate  of  interest  payable  to  the  vendor.(«) 

§  912.  The  vendor  in  receipt  of  the  rents  is  generally  charged  only 
with  the  rents  he  has  received,  but  he  may,  under  certain  circumstances, 
be  charged  with  those  which  without  his  wilful  fault  he  might  have  re- 
ceived.(/c)  In  a  case(?)  before  Sir  Thomas  Plumer  the  vendor  was  so 
charged,  where  the  circumstances  which  justified  this  charge  appear  to 
have  been  the  facts  that  the  rents  had  been  allowed  to  run  in  arrear,  and 
that  it  was  through  the  vendor's  fault  that  the  purchaser  was  not  able 
safely  to  take  possession.  In  a  recent  case,(??i)  where  the  vendor  was 
similarly  charged  by  the  master  of  the  rolls,  his  judgment  was  reversed, 
on  appeal,  by  the  lord's  justices,  who  decided  that,  in  the  absence  of 
special  circumstances,  the  vendor  will  not  be  charged  with  the  rents 
which  he  might  have  received  without  wilful  default,  and  that  he  will  not 
be  subjected  to  any  inquiry  unless  there  be  evidence  that  he  has  in  some 
way  acted  otherwise  than  a  prudent  owner  would  have  done.  The  ven- 
dor in  possession  is  not  therefore,  as  has  sometimes  been  said,  in  the 
position  of  a  bailifi"  at  common  law  to  the  purchaser;  for  such  a  bailiflfis 
answerable  not  only  for  his  actual  receipts,  but  for  what  he  might  have 
made  of  the  lands  without  his  wilful  default. (n) 
^^Q„^  *§  ^^^-  Ifj  after  the  contract,  and  whilst  the  land  is  in  the 
L  ^  -I  possession  of  the  vendor,  any  deterioration  takes  place  by  his  con- 
duct or  that  of  his  tenants,  he  will  be  accountable  for  it  to  the  purcha- 
ser :(o)  and  where  a  purchaser  had  paid  his  money  into  court  under  an 
order,  and  he  was  considered  entitled  to  compensation  for  deterioration, 
he  was  allowed  the  amount  out  of  his  purchase-money,  together  with 
interest  at  £4  per  cent,  from  the  time  when  he  paid  it  in,  and  the  costs 
of  the  trial  of  the  issue  directed  to  ascertain  the  amount  of  damage. (p) 

§  914.  On  the  other  hand,  the  purchaser  will  have  to  bear  the  loss 
from  deterioration.  First,  where  it  occurs  after  the  time  at  which  he  ought 
to  have  taken  possession. (§') 

§  915.  Secondly,  where  it  occurs  during  the  period  in  which  the  ven- 
dor is  in  possession,  but  is  the  result  of  accident,  without  the  fault  of 
the  vendor  :  so  that  where  during  this  period  the  vendor  was,  in  conse- 
quence of  such  an  accident,  compelled  to  expend  money  on  or  in  respect 
of  the  property,  as  in  shoring  it  up,  or  removing  rubbish  which  had  fallen 
on  a  neighbour's  property,  the  vendor  was  held  entitled  to  have  this 
repaid  by  the  purchaser :  but  the  court  refused  to  make  the  purchaser 
pay  the  expenses  of  a  reference  to  the  master  in  relation  to  the  repairs, 

(^)  p.  1'75.  (h)  Sug.  Vend.  528. 

(/)  Acland  v.  Gaisford,  2  Mad.  28. 

(k)  Acland  v.  Gaisford,  2  Mad.  28.  (I)  Wilson  v.  Clnpliam,  1  J.  &  W.  36. 

(?«)  Sherwin  v.  Shakspeare,  17  Beav.  267 ;  S.  C.  5  De  G.  M.  &  G.  517.    See  also 
llowell  V.  Howell,  2  My.  &  Cr.  478,  and  compare  Sug.  Vend.  519. 
(n)  Co.  Litt.  172,  a. ;  Wheeler  v.  Home,  Willes,  208. 

(o)  Foster  v.  Deacon,  3  Mad.  394.  (p)  Ferguson  v.  Tadraan,  1  Sim.  530. 

(q)  Binks  V.  Lord  Rokeby,  2  Sw.  222  ;  Minchin  v.  Nann,  4  Beav.  332. 


IN  TEH  EST,    RENTS,    DETERIORATION,    ETC.  257 

though  that  had  been  proper  for  the  protectioa  of  the  trustees  of  the 
estate. (r) 

§  916.  Thirdly,  still  more  clearly  where  the  deterioration  during  this 
period  is  due  to  the  purchaser,  though  out  of  possession,  must  the  loss 
fall  on  hira.  Thus,  where  a  purchaser  agreed  with  a  tenant  of  the  estate 
that  he  should  give  up  possession  if  the  purchaser  had  a  conveyance  by 
a  certain  time,  and  the  tenant  misconstruing  the  agreement  gave  up  pos- 
session though  the  purchaser  had  not  the  conveyance;  *the  pur-  |.^-„_-, 
chaser  was  held  to  be  the  innocent  cause  of  the  mischief,  and  so  L  'J 
responsible  for  the  deterioration  which  resulted,  (s) 

§917.  (2)  The  cases  which  arise  where  the  vendor  is  himself  in  ac- 
tual possession  correspond  with  those  where  he  is  in  receipt  of  the  rents 
and  protits,  except  that,  instead  of  having  to  pay  over  the  rents  received 
from  others,  he  will  have  to  pay  to  the  purchaser  an  occupation  rent  to 
be  set  upon  the  estate,  himself  receiving  interest  in  return. (^) 

§  918.  No  such  occupation  rent,  however,  will  be  allowed  where  the 
purchaser  ought  under  the  agreement  to  have  taken  possession,  and  the 
vendor  has  continued  in  possession  only  by  reason  of  the  purchaser's 
wrong  doing. (?/) 

§  919.  (3)  The  rule  that  the  purchaser  in  possession  shall  pay  inter- 
est on  the  unpaid  part  of  the  purchase-money  will  be  applied  even  in 
cases  where  the  delay  arises  from  the  neglect  of  the  veudor.^i')  ''The 
act  of  taking  possession,"  said  Sir  William  Gra.nUiv\  "  is  an  implied 
agreement  to  pay  interest :  for  so  absurd  an  agreement  as  that  a  purcha- 
ser is  to  receive  the  rents  and  profits  to  which  he  has  no  legal  title,  and 
the  vendor  is  not  to  have  interest,  as  he  has  no  legal  title  to  the  monev, 
can  never  be  implied."  And  so  where  a  purchase  was  to  be  completed 
by  a  given  day,  when  the  purchaser  was  to  have  possession,  and  it  was 
provided  that  if  from  any  cause  whatever  the  purchase-money  should  not 
be  then  paid,  the  purchaser  should  pay  interest,  and  a  delay  of  six  months 
was  occasioned,  but  innocently,  by  the  vendor  in  not  delivering  proper 
abstracts,  he  was  put  to  his  election  to  pay  interest  or  give  up  the 
rents,  though  notice  had  been  given  by  the  purchaser  that  the  money 
was  lying  idle. (a;) 

*§  920.  And  where  a  purchaser  under  a  decree  accepted  pos-  r:)cr,Qcn 
session,  and  on  a  report  of  an  objection  returned  possession,  he  l  "^  J 
was  ordered  to  pay  interest  from  the  time  at  which  he  took  possession, 
or  at  which  a  title  was  shown  under  which  he  might  safely  have  done  so, 
and  even  for  the  time  during  which  he  returned  the  possession. (j/) 

§  921.  So  strongly  do  courts  of  equity  hold  to  this  principle,  that  a 
purchaser  in  possession  shall  pay  interest  on  the  unpaid  purchase-money, 
that  it  will  look  at  any  agreement  which  appears  to  prevent  the  applica- 
tion of  this  rule  by  the  light  of  this  general  principle  of  justice,  and,  it 

(r)  Robertson  v.  Skclton,  12  Beav.  360. 

h)  Harford  v.  Furrier,  1  Mad.  532.  ((')  Dyer  v.  Hargrave,  10  Yes.  505. 

(u)  Dakiii  V.  Cope,  2  Russ.  170,  181.  (v)  Fludyer  v.  Cocker,  12  Ves.  25. 

(?(•)  S.  C.  pp.  27,  28.  (x)  Cowpe  v.  Bakewell,  13  Beav.  421. 

(y)  Binks  V.  Lord  Rokeby,  2  S\v.  222.  See  also  Attorney-General  v.  Christ- 
church,  13  Sim.  214. 


258       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

seems,  refuse  execution  of  it  where  it  grossly  violates  this  principle,  for 
"  a  court  of  equity  interposes  only  according  to  conscience. 'Vz)  So  that 
where  a  contract  stipulated  that  the  interest  on  the  remainder  of  the 
purchase-money  should  not  commence  till  Lady-day  next,  in  case  the 
title  should  be  perfected  and  the  assurances  executed  at  that  time  ;  and 
if  not,  then  to  commence  on  the  execution  of  such  assurances,  and  the 
purchaser  was  let  into  possession  under  a  stipulation  in  the  contract  to 
that  effect,  but  the  assurances  were  not  executed  for  forty  years,  the  house 
of  lords  held  that  the  purchaser's  exemption  from  interest,  though  per- 
missible if  the  contract  had  been  speedily  executed,  would  not,  under 
such  circumstances  and  with  such  length  of  time,  be  enforced  by  a  court 
of  equity. (a) 

§  922.  In  sales  of  reversionary  estates,  the  purchaser  cannot,  of  course, 
be  let  into  actual  possession  or  receipt  of  the  profits  of  the  estate  pur- 
chased. It  becomes,  therefore,  necessary  to  inquire  from  what  period  he 
is  to  be  treated  as  if  he  were  in  possession,  so  as  to  render  him  liable  to 
the  payment  of  interest  on  his  unpaid  purchase-money  :  for  the  wearing 
j-,j.r,oq-i  away  of  the  lives,  or  of  the  time  *after  which  the  reversion  will 
L  -I  vest  in  possession,  is  justly  considered  equivalent  to  possession, 
and  as  creating  in  the  purchaser  a  liability  to  pay  interest.  (M 

§  923.  The  purchaser  of  such  an  estate  pays  interest  from  the  time  at 
which  he  became  by  law  entitled  to  receive  the  rents,M  which  is  prima 
facie  the  time  fixed  for  completion  of  the  contract,  and  not  the  time  at 
which  a  good  title  was  shown, (r?)  except,  it  seems,  where  the  contract 
specifies  no  time  for  completion,  in  which  case  it  runs  from  the  time  at 
which  a  good  title  was  first  shown. (e)  This  may  of  course  be  modified 
by  contract :  so  where  the  contract  stipulated  that  the  rents  should  belong 
to  the  purchaser  only  from  the  time  the  contract  was  completed,  the 
vendor  was  held  not  entitled  to  claim  interest  on  the  unpaid  part  of  the 
purchase-money .  (A 

§  924.  In  cases  of  sales  of  reversions  under  the  court,  interest  will,  it 
seems,  run  from  the  time  the  report  was  confirmed  absolute. (^)  But 
where  a  time  is  specified  at  which  the  money  ought  to  be  paid  into  court, 
that,  and  not  the  confirmation  of  the  sale  will,  it  appears,  be  the  time 
from  which  interest  will  run )  as  in  the  case  of  an  estate  in  possession, 
that  would  be  the  time  at  which  a  purchaser  would  be  entitled  to  enter 
into  the  receipt  of  the  rents.     So  where  the  25th  December,  1849,  was 

[z)  Per  Lord  St.  Leonards  in  Birch  v.  Joy,  3  Ho.  Lords,  598. 

(«)  Birch  V.  Joy,  3  Ho.  Lords,  565. 

\h)  See,  as  well  as  the  subsequent  cases,  Davy  v.  Barber,  2  Atky.  489. 

(c)  Champernowne  v.  Brooke,  3  CI.  &  Fin.  4,  (overruling  Blount  v.  Blount,  3 
Atky.  636.) 

[d)  Bailey  v.  CoUett,  18  Beav.  179;  Wallis  v.  Sarel,  5  De  G.  &  Sm.  429;  Davy 
T.  Barber,  2  Atky.  489.     See  Owen  v.  Davies,  3  Atky.  637. 

(«)  Enraght  v.  Fitzgerald,  2  Dr.  &  AV.  43,  reversing  Lord  Plunkett's  decision,  S. 
C.  2  Ir.  Eq.  R.  87,  that  interest  should  run  from  the  date  of  the  report  of  good 
title. 

(/)  Brooke  v.  Champernowne,  4  CI.  &  Fin.  589,  and  see  Weddall  v.  Nixon,  17 
Beav.  160. 

{y)  Ex  parte  Manning,  2  P.  Wms.  410.  See  also  Child  v.  Lord  Abingdon,  1 
Ves.  Jun.  94;  Trefusis  v.  Lord  Clinton,  2  Sim.  359. 


INTEREST,    RENTS,    DETERIORATION,    ETC.  259 

appointed  for  tlie  payment  of  the  money  into  court,  but  the  abstract  was 
delivered  in  September,  1851,  and  a  good  *title  was  not  made  r^ogA-i 
out  till  March,  1852,  interest  at  <£4  per  cent,  was  directed  to  be  L  J 
paid  from  the  25th  December,  lS49.(/t) 

§  925.  Possession  of  the  estate  and  of  the  purchase-money  being,  as 
we  have  seen,  mutually  exclusive,  the  vendor  is  entitled  to  call  on  a  pur- 
chaser in  possession  to  pay  the  purchase-money  into  court. 

§  926.  Where  the  purchaser  is  in  possession,  and  the  vendor  has  dis- 
closed such  a  title  as  the  purchaser  ought  to  accept,  his  right  thus  to 
proceed  is  clear.  And  the  court  will  pursue  this  course  where  the  pur- 
chaser in  possession  admits  a  good  title,  though  he  may  claim  the  right 
to  object,  it  not  having  been  approved  by  counsel. (i) 

§  927.  On  the  other  hand  it  is  a  general  rule  that  where  it  is  through 
the  ladies  of  the  vendor  that  the  title  remains  incomplete,  the  court  will 
refuse  an  application  for  the  payment  of  the  purchase-money  into  court.(A-) 

§  928.  Ikit  where  the  want  of  a  good  title  being  shown  is  not  from  the 
default  of  the  vendor,  the  court  will,  it  seems,  put  the  purchaser  to  his 
election,  either  to  pay  in  his  purchase-money  or  to  give  up  possession. 
Thus,  in  a  casef/)  before  Lord  Eldon,  where  the  purchaser  was  let  into 
possession,  both  parties  acting  in  the  confidence  that  the  title  would  soon 
be  made  out,  and  that  confidence  was  ''  not,"  to  use  his  lordship's  words, 
"made  good,  and  that  was  a  surprise  upon  both,"  his  lordship  expressed 
the  opinion  that  the  purchaser  should  be  put  to  his  election,  either  to 
give  up  possession  or  to  pay  the  money  into  court ;  but  on  a  subsequent 
day  the  lord  chancellor  said  only  that  the  purchaser  ought,  at  least,  to 
pay  interest  on  his  purchase-money;  and  the  point  was  ultimately  settled 
by  agreement  between  the  parties.  xVnd  notwithstanding  *some  j-^^-^-. 
doubts  cast  upon  the  wisdom  of  this  judgment  in  a  subsequent  L  ^  J 
case(??^)  by  Sir  Thomas  Plumer,  who  considered  it  to  be  ''  the  imprudence 
of  the  vendor  in  letting  the  vendee  into  possession  before  the  questions 
upon  the  title  were  disposed  of :"(«)  the  court  will  generally  put  a  pur- 
chaser in  possession  where  the  title  has  not  been  made  out  to  his  election, 
either  to  pay  in  the  purchase-money  or  to  give  up  possession, f'o)  and  the 
court  did  so  in  one  case  where  it  was  part  of  the  contract  that  £5000, 
part  of  the  purchase-money,  £0300  should  be  secured  by  a  mortgage  of 
the  estate.(p)  In  some  cases(5r)  two  months,  and  in  another(r)  one 
month,  have  been  allowed  the  purchaser  to  elect  whether  of  the  alterna- 
tives to  accept. 

§  929.  Where  the  agreement  allows  possession  to  be  taken  before  the 

(h)  Wallis  V.  Sard,  5  De  G.  &  Sm.  429. 

\i)  Crutchley  v.  Jerningham,  2  Jler.  502.  {k)  Fox  v.  Birch,  I  Mer.  105. 

(/)  Gibson  v.  Clarke,  1  V.  &  B.  500. 

(to)  Clarke  v.  Elliott,  1  Mad.  606.  («)  p.  607. 

(o)  Clarke  v.  Wilson,  15  Ves.  317;  Smith  v.  Lloyd,  1  Mad.  83;  Wickham  r. 
Evered,  4  Mad.  53;  Tindal  v.  Cobham,  2  My.  &  K.  385.  See  also  King  v.  King,  1 
My.  &  K.  442. 

{p)  Younge  v.  Buncombe,  You.  275. 

\q)  Younge  v.  Buncombe,  Tindal  v.  Cobham,  ubi  sup. 

(/•)  Wickham  v.  Evered,  ubi  sup. 


260      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

completion  of  the  title,  the  court  will  not  generally  order  the  payment  of 
the  purchase-money  into  court  on  the  score  of  possession. (s) 

§  930.  And  if  the  purchaser  should  happen  to  be  in  possession  under 
some  other  title  than  the  agreement,  this  is  a  circumstance  against  call- 
ing for  the  payment  of  the  purchase-money  into  court;  as  where  the 
purchaser  was  in  possession  not  under  the  agreement  for  sale,  but  as 
tenant  to  the  vendor  at  the  time  of  the  purchase, (A  or  where  the  pur- 
chaser was  a  tenant  in  common  with  the  vendor,  and  had  with  his  con- 
sent been  in  receipt  of  the  rents  of  the  whole. (i<) 

P^oQ9-i  §  931.  Where  the  mere  taking  possession  of  the  property  *does 
L  "'J  not  furnish  any  ground  for  ordering  the  payment  of  the  money 
into  court,  this  will  yet  be  done  where  the  purchaser  in  possession  com- 
mits acts  of  ownership,  and  this,  even  if  the  title  may  not  have  been 
made  out,(?;)  or  the  purchaser  may  be  in  possession  according  to  the  terms 
of  his  agreement.  (26-)  For  the  ground  of  this  proceeding  is  that  by  such 
acts  the  purchaser  is  altering  the  property  which  constitutes  the  security 
of  the  vendor  for  his  purchase-money,  and  diminishing  the  value  of  the 
vendor's  lien  on  the  estate  :(x)  hence,  acts  of  ownership  which  are  clearly 
an  improvement  to  the  estate,  will  not  support  such  an  application  to  the 
court  :(j/)  and  hence,  also,  acts  which  may  not  show  that  the  occupier 
considers  himself  the  owner,  and  so  will  not  justify  a  decree  of  specific 
performance  against  him  without  further  investigation  of  the  title,  may 
yet  be  a  ground  for  an  order  to  pay  the  money  into  court,  and  the  appoint- 
ment of  a  receiver;  so  that  in  one  case,  stubbing  up  an  osier-bed,  levelling 
the  land  and  filling  up  a  pond,  were  held  to  justify  an  order  for  payment 
and  the  appointment  of  a  receiver,  but  a  reference  of  title  was  at  the  same 
time  made.(z\  In  another  case,(a)  Lord  Eldon  took  into  consideration  also 
the  unreasonable  delay  which  had  been  caused  by  the  purchaser  in  pos- 
session as  well  as  his  acts  of  ownership. 

§  982.  In  one  case  where  the  purchaser  had  been  let  into  possession 
under  the  agreement,  and  objected  to  the  title,  he  was  allowed  to  remain 
in  possession  on  payment  of  an  occupation  rent :  but  the  case  seems  to 
be  one  of  arrangement,  not  of  strict  right. (i) 

i-^„„„-.  §  933.  The  order  for  payment  into  court  may  be  made  *on 
L         J  motion, (c)  and  if  circumstances  justify  it,  before  answer,^(:Z]  even 

(s)  Morgan  v.  Shaw,  2  Mer.  138  ;  Gibson  v.  Clarke,  1  V.  &  B.  500  ;  Gell  v.  Wat- 
son, 3  Mad.  225. 

(/)  Bonner  v.  Johnston,  1  Mer.  3G6. 

(u)  Freebody  v.  Parry,  Coop.  91 ;  cf.  Walters  v.  Upton,  Coop.  92,  n.,  which  ap- 
pears to  depend  on  the  circumstances  stated  by  Sir  Samuel  Romilly  argueado,  in 
the  case  to  which  it  is  a  note. 

(v)  Bonner  v.  Johnston,  1  Mer.  366. 

(w)  Dixon  V.  Astley,  19  Ves.  564;  S.  C.  1  Mer.  133,  378,  n. 

{x}  Cutler  V.  Simons,  2  Mer.  106,  where  a  list  of  acts  upon  which  such  orders 
had  been  made  is  given. 

(y)  Bramley  v.  Teal,  3  Mad.  219. 

(z)  Osborne  v.  Harvey,  1  Y.  &  C.  C.  C.  116. 

(a)  Burroughs  v.  Oakley,  1  Mer.  52,  376,  n. 

{I,}  Smith  V.  Jackson,  1  Mad.  83,  618. 

(c)  Tindal  v.  Cobliara,  2  My.  &  K.  385 ;  Wickham  v.  Evered,  4  Mad.  53.  See 
also  Buck  V.  Lodge,  18  Ves.  450. 

{(1)  Bonner  v.  Johnston,  1  Mer.  366;  Dixon  v.  Astley,  1  Mer.  133. 


D  E  r  0  s  I T.  261 

though  the  defendant  may  have  filed  no  affidavit  so  as  to  bring  the  merits 
before  the  court, (i»)  and  though  the  acts  of  ownership  relied  on  are  not 
stated  in  the  bill.(/)  The  facts  necessary  to  support  such  an  application 
may  be  supplied  by  affidavit,  whether  stated  in  the  bill,  and  not  admitted 
by  the  answer,(y)  or  not  stated  in  the  bill. (A) 

§  934.  Where  an  order  for  payment  into  court  has  been  opposed,  and 
the  money  is  in  the  hands  of  a  stakeholder  who  afterwards  absconds,  the 
loss  fall  on  the  party  who  opposed  the  order. (<) 


*CH  AFTER    V.  [*394] 

OF    THE   DEPOSIT. 

§  935.  It  is  usual  in  sales  of  real  estate  for  the  purchaser  to  pay  to 
the  vendor,  at  the  time  of  the  contract,  a  portion  of  the  purchase-money 
by  way  of  deposit.  Where  a  suit  for  specific  performance  fails,  the  ques- 
tion has  often  arisen  as  to  the  power  of  the  court  to  deal  with  this  deposit. 
The  subject  must  be  considered,  first,  where  the  vendor  is  the  plaintiff, 
and  secondly,  where  the  purchaser  is  the  plaiutiif. 

§  9oG.  (1)  Where  the  vendor  is  the  plaintiff,  and  fails  in  his  suit  for 
specific  performance,  the  court  may  dismiss  the  bill,  and  order  the  plain- 
tiff to  return  the  deposit,(a)  with  interest  at  £4  per  cent.(Z')  And 
where  a  bill  sought  the  renewal  of  certain  leaseholds  which  the  court  re- 
fused to  grant.  Lord  St.  Leonards,  acting  in  analogy  with  this  principle, 
acceded  to  the  request  of  the  principal  defendants,  that  they  might  be 
allowed  to  put  in  suit  the  recognizance  which  had  been  entered  into  by 
the  plaintifis  and  a  defendant  in  the  same  interest  for  the  security  of  the 
mesne  rates  on  the  leaseholds  in  question. (r) 

§  937.  But  the  proceeding  of  the  court  in  this  respect  is  discretionary, 
and  depends  on  circumstances,  for  the  court,  *by  dismissing  r^oQK-i 
the  bill,  sometimes  means  to  leave  the  parties  to  their  legal  re-  L  J 
medies,  in  which  case  it  will  not  order  the  return  of  the  deposit. ((^i') 

§  938.  (2)  With  regard  to  the  power  of  the  court  to  give  the  purcha- 
ser relief  in  respect  of  his  deposit  where  he  is  the  plaintiff,  and  specific 
performance  is  not  enforced,  considerable  variation  has  taken  place.  In 
Denton  v.  Stewart,(f)  Lord  Kenyon  decreed  the  defendants  to  return 
the  deposit  and  reimburse  the  plaintiff  his  costs,  and  this  was  coun- 
tenanced, though  with   expressions   of  doubt  on   the  principle,  by  Sir 

(e)  Blackburn  v.  Stace,  6  Mad.  G9.  (/)  Cutler  v.  Simons,  2  Mer.  103. 

Iff)  Boothby  v.  Walker,  1  Mad.  197. 

(h)  Crutchley  v.  Jerningham,  2  Mer.  502. 

(i)  Fenton  v.  Browne,  14  Ves.  144;  Burroughs  v.  Oakley,  1  Mer.  52. 

(a)  Bryant  v.  Busk,  4  Huss.  5  ;  Hicks  v.  Phillips,  Free,  in  Ch.  575. 

(/))  Lord  Anson  v.  Hodges,  5  Sim.  227 ;  Webb  v.  Kirby,  7  De  G.  M.  &  G.  376. 

(c)  Butler  v.  Lord  Portarlington,  1  Dr.  &  W.  20,  G5. 

(d)  Southcomb  v.  Bishop  of  Exeter,  G  Ha.  225. 

(e)  1  Cox,  258 ;  S.  C.  17  Ves.  276,  n. 


262       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

William  Grant  in  Greenaway  v.  Adams. (/)  In  botli  these  cases  the 
plaintiiF  had  originally  a  binding  contract,  which  was  only  defeated  by  a 
subsequent  act  of  the  defendant,  namely  his  alienation  for  a  valuable 
consideration  of  the  property  in  question.  The  doubts  which  Sir  Wil- 
liam Grant  expressed  in  the  case  already  cited  probably  increased  in  his 
mind,  and  these,  with  the  general  feeling  and  practice  of  the  profession, 
induced  that  judge  in  a  subsequent  case  to  refuse  to  follow  out  the  prin- 
ciple.(^)  These  preceding  cases  were  fully  considered  by  Lord  Eldon  in 
Todd  V.  Gee, (A)  where  he  held  that,  except  in  very  special  cases,  a  bill 
cannot  be  filed  asking  the  performance  of  a  contract,  or  in  the  alterna- 
tive, if  it  cannot  be  performed,  an  issue  or  an  inquiry  with  a  view  to 
damages.  The  incapacity  of  the  court  to  give  relief  in  the  way  of 
damages  was  the  principle  upon  which  Lord  Eldon  rested  his  decision. 
This  decision  has  been  followed  in  many  subsequent  cases. (t) 

§  939.  A  recent  decision, T/^-)  however,  of  Vice-Chancellor  Kindersley 
r*MQn  *^PPGars  to  lead  to  a  conclusion  practically  different  from  this 
L  -I  current  of  authorities.  There  the  vice-chancellor,  grounding 
himself  mainly  upon  a  dictum  of  Sir  Thomas  Clarke,(/)  which  has  re- 
ceived the  sanction  of  Lords  Eldon(m)  and  St.  Leonards, (?*)  decided  that, 
in  cases  where  the  vendor  is  the  beneficial  owner,  and  the  sale  goes  off 
from  want  of  title  or  any  other  circumstance  not  connected  with  the 
actual  misconduct  of  either  party,  an  intended  purchaser  is  entitled  to  a 
lien  for  his  deposit  on  the  interest  of  the  vendor  in  the  property  sold, 
and,  as  a  consequence,  that  a  bill  may  be  filed  for  the  enforcement  of 
this  lien,  or  that  it  may  form  an  alternative  prayer  in  a  bill  for  specific 
performance.  The  principle  upon  which  this  case  proceeds  is  the 
enforcement  of  a  lien  which  is  equitable,  and  not  merely  of  the  claim  to 
the  repayment  of  money,  which  is  a  legal  right. 

(/)  12  Ves.  395. 

(g)  Gwillim  v.  Stone,  14  Ves.  128.     See  also  Blore  v.  Sutton,  3  Mer.  237,  248. 

(A)  17  Ves.  273. 

{i)  Kendall  v.  Beckett,  2  Russ.  &  M.  88 ;  Jenkins  v.  Parkinson,  2  My.  &  K. 
5;  Van  v.  Corpe,  3  My.  &  K.  269;  Sainsbury  v.  Jones,  2  Beav.  462;  S.  C.  5 
My.  &  Cr.  1  ;  Williams  v.  Edwards,  2  Sim.  78. 

[k]  Wythes  v.  Lee,  3  Drew,  396,  compromised  on  appeal,  25  L.  J.  Ch.  389; 
cf.  Blore  v.  Sutton,  3  Mer.  237. 

(/)  In  Burgess  v.  Wbeate,  1  Ed.  211. 

im)  In  Mackreth  v.  Symmons,  15  Ves.  353.  (?;)  Vend.  552. 


CONTRACTS    AS    TO    EXPECTANCIES.  263 

PART  VI. 

OF  SOME  CONTRACTS  IN  PARTICULAR. 


*CH AFTER   I.  [*397] 

OF    CONTKACTS   RELATING    TO   CONTINGENT    INTERESTS    AND    EXPECT- 
ANCIES. 

§  940.  At  law  it  has  been  laid  down  that  the  possibility  of  succession 
is  not  an  object  of  disposition,  and  that  if  the  heir  were  to  dispose  of  the 
succession  during  the  life  of  the  ancestor,  such  disposition  would  be 
void,  though  the  inheritance  should  afterwards  have  devolved  on  him  :(a) 
however,  in  a  recent  case  before  the  queen's  bench,  the  court  supported 
as  valid  an  agreement  to  sell  an  estate  if  it  should  be  devised  to  the 
vendor  by  a  person  then  living. (Z;)  In  equity,  contracts  relating  to  ex- 
pectancies have  been  long  upheld, (c)  and  that  although  they  may  in 
some  sort  seem  to  have  defeated  the  intentions  of  testators,  or  been  in 
fraud  of  parental  authority. 

§  941.  One  of  the  earliest  cases  on  this  subject  is  Wiseman  v.  Roper,((/) 
where  a  covenant  to  settle  an  estate  to  which  the  covenantor  had  only 
an  expectancy  as  heir,  was  after  the  descent  of  the  lands  specifically 
enforced  on  him. 

*§  942,  In  Beckley  v.  Newland,(e)  the  plaintiff  and  defen-  r-^qnoT 
dant  had  married  two  sisters,  who  were  the  presumptive  heiresses  L  -• 
of  Mr.  Turgis,  a  very  rich  man,  who  had  made  and  revoked  several 
wills,  and  ultimately  made  one  leaving  a  great  estate  to  the  defendant, 
and  only  a  small  one  to  the  plaintiff.  Previously  to  the  execution  of  the 
will,  the  plaintiff  and  defendant  had  entered  into  an  agreement  for  the 
equal  division  between  them  of  what  should  be  left  to  each  of  them ; 
and  this  agreement  was  upheld  and  specifically  enforced  by  Lord  Mac- 
clesfield, who  said  that  the  agreement  was  ''not  disappointing  the  intent 
of  the  testator,  for  he  did  not  design  to  put  it  out  of  either  of  the  de- 
visees' power  to  dispose  of  the  estate  after  it  should  come  to  him  ;  but, 
on  the  contrary,  when  the  testator  gave  it  to  either  of  them,  he  by  im- 
plication gave  that  person  a  power  to  dispose  of  the  said  estate  when  it 
should  come  to  him.^^  The  same  principle  was  pursued  by  his  lordship 
in  another  like  case,(/)  and  was  followed  by  Lord  Hardwick  in  uphold- 
ing the  validity  of  the  conveyance  of  a  contingency  or  possibility  on  the 
death  of  a  sister  unmarried. (y) 

(a)  Per  Lord  Kcnyon  in  Jones  v.  Roe,  3  T.  R.  93.  The  Roman  law  likewise 
prohibited  such  contracts.     Pothier,  Tr.  des  Oblig.  part  i.  eh.  1,  sect.  4,  ^  2. 

(b)  Cook  V.  Field,  15  Q.  B.  460. 

(c)  Cf.  Alexander  v.  Duke  of  Wellington,  2  R.  &  My.  35. 

(rf)  1  Rep.  in  Ch.  154.  (c)  2  P.  Wms.  182. 

(/)  Ilobson  V.  Trevor,  2  P.  Wms.  191. 
Iff)  Wright  V.  AVright,  1  Yes.  Sen.  409. 


264      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  943.  In  Harwood  v.  Tooke,(/i)  the  plaintiff  and  the  defendant,  the 
celebrated  John  Home  Tooke,  had  made  a  parol  agreement  to  divide 
what  should  come  to  them  from  a  testator  :  in  satisfaction  of  this  the 
plaintiff  had  given  to  the  defendant,  Tooke,  a  note  for  £4000,  which  he 
had  indorsed  over  to  the  other  defendant,  Sir  Francis  Burdett,  for  valu- 
able consideration.  All  that  Lord  Eldon  ultimately  decided  in  the  case 
may  have  been  that  the  plaintiff  had  no  equity  to  follow  the  note  into 
the  hands  of  this  purchaser  for  f  alue  ;  and  it  appears  from  one  of  the 
reports  that  he  expressed  doubts  whether  the  transaction  between  the 
plaintiff  and  the  defendant,  Tooke,  was  not  a  fraud  on  the  testator,  and 
r*QOQi  ^whether  the  court  would  at  any  rate  assist  in  specifically  per- 
L  J  forming  such  an  agreement.  But  the  case  has  usually  been 
treated  as  an  authority  for  the  validity  of  contracts  relating  to  expect- 
ancies.(t) 

§  944.  In  another  case,(7i;)  the  agreement  seemed,  at  first  sight,  in  fraud 
of  the  parental  authority,  but  was  upheld  on  a  like  grouud  to  that  taken 
by  Lord  Macclesfield.  An  agreement  had  been  entered  into  by  two  sons 
to  divide  equally  between  them  whatever  they  might  receive  from  their 
father  in  his  lifetime  or  after  his  decease,  by  will  or  otherwise.  It  was 
very  strongly  argued  that  this  was  a  scheme  on  the  part  of  the  sons  to 
protect  themselves  from  the  consequences  of  misconduct,  and  to  bid  de- 
fiance to  parental  authority.  But  the  vice-chancellor  held,  that  as  the 
testator  had  the  power  of  giving  an  estate  to  his  sons,  so  that  they 
should  have  only  the  personal  enjoyment  without  power  of  alienation, 
and  not  choosing  so  to  give  it,  but  giving  it  absolutely,  he  had  allowed 
it  to  become  liable  to  all  their  antecedent  contracts,  and  therefore  to  the 
agreement  in  question,  of  which  specific  performance  was  accordingly 
gran  ted.  (Z) 

§  945.  Similar  in  principle  is  the  case  of  Lyde  v.  Mynn,(m)  where  a 
husband  granted  an  annuity  for  his  life,  and  by  way  of  further  security 
covenanted  to  charge  it  on  all  the  property  he  should,  in  the  event  of 
his  wife's  decease,  become  entitled  to  by  her  will  or  otherwise  ;  and  it 
was  held  that  no  objection  could  be  taken  on  the  ground  of  its  relat- 
ing to  a  mere  expectancy ;  and  the  court  accordingly  specifically  per- 
formed the  covenant.  And  so  again,  agreements  respecting  the  costs  of 
r*Anm  pi'occedings  in  lunacy,  *or  the  ultimate  division  of  a  lunatic's 
L         J  property,  are  not  void.(n) 

§  946.  The  circumstances  attending  such  contracts  as  those  now 
under  discussion  are  more,  rather  than  less,  likely  to  be  such  as  would 
prevent  the  court  from  enforcing  them.  Such  were  the  circumstances 
in  Morse  v.  Faulkner,(o)  in  the  exchequer,  and  in  the  more  recent  case 

(A)  2  Sim.  192,  from  Mr.  Haddock's  M.  S.  n. ;  1  My.  &  K.  685. 

(i)  See  per  V.  C.  of  England  in  Wethered  v.  Wetbered,  2  Sim.  191 ;  Hyde  v. 
White,  5  Sim.  524,  and  per  Lord  Chancellor  Brougham  in  Lyde  v.  Mynn,  1  My.  & 
K.  693. 

(/f)  Wethered  v.  Wethered,  2  Sim.  183. 

{1}  See  accordingly  Hyde  v.  White,  5  Sim.  524;  Houghton  v.  Lees,  1  Jur.  N.  S. 
8G2,  (Stuart,  V.  C.) 

(m)  1  My.  &  K.  683.  (n)  Persse  V.  Persse,  1  CI.  &  Fin.  279. 

(o)  3  Sw.  429,  n. 


COVENANTS    TO    RENEW.  265 

of  Ryan  v.  Daniel. (p)  In  the  latter  case  each  of  two  younj^  officers  in 
the  army  signed  and  gave  to  the  other  a  document,  by  which  each 
charged  his  estate  with  £1000  in  favour  of  the  other,  in  case  the  other 
should  survive  him,  the  consideration  of  each  of  these  documents  being 
the  other  of  them  :  many  years  subsequently  a  correspondence  passed 
between  these  officers  with  a  view  to  a  rescission  of  the  transaction,  but 
that  intention  was  never  carried  into  effect.  The  court  held  that,  look- 
ing at  the  circumstance  of  the  transaction,  the  age  and  condition  of  the 
parties  and  their  subsequent  correspondence,  there  was  no  equitable 
claim  which  the  court  would  enforce,  but  it  retained  the  bill  for  twelve 
months,  with  liberty  to  bring  an  action  to  establish,  if  the  plaintiff  could, 
a  legal  debt. 

§  947.  Contracts  made  by  a  person  before  the  devolution  of  the  estate 
or  other  realization  of  his  expectancy  are  it  seems,  purely  personal,  and 
only  capable  of  being  enforced  against  the  contractor  personally  during 
his  lifetime.  In  Morse  v.  Faulkner,  in  1792,  the  Lord  Chief  Baron, 
speaking  of  such  a  case,  said,(g')  "  The  surrenderor  not  having  any  title 
whatever  to  the  premises,  at  the  time  of  the  surrender,  his  agreement 
would  not  raise  a  lien  upon  the  land  ;  and  although  the  present  plaintiffs 
might  have  been  relieved  if  they  had  filed  their  bill  against  him  in  his 
lifetime,  that  is  after  his  title  had  accrued,  yet  it  does  not  follow  that 
therefore  they  can  be  relieved  against  his  heirs.  Neither  the  land  itself 
*nor  the  conscience  of  the  present  defendants  is  bound  by  this  |-^)n-i-i 
act  of  William  the  surrenderor."  Similar  to  this  appears  to  be  L  J 
the  doctrine  of  Lord  Eldou  in  Careleton  v.  Leighton,(r)  for  though  his 
lordship  is  represented  as  saying  that  the  expectancy  of  an  heir  could 
not  be  made  the  subject  of  assignment  or  contract,(s)  yet  the  subsequent 
sentences  seem  rather  to  show  his  meaning  to  have  been,  that  though  a 
contract  might  create  a  personal  liability,  there  was  no  such  interest  as 
could  be  assigned  or  as  would  pass  by  a  bargain  and  sale  to  assignees  in 
bankruptcy. 


♦CHAPTER    IL  [*402] 

OF   COVEXANTS  TO  RENEW. 

§  948.  It  is  now  clearly  established  that  the  jurisdiction  in  specific 
performance  is  applicable  to  covenants  to  grant  perpetual  or  other 
renewals,  though  the  practice  of  the  court  in  past  times  has  somewhat 
varied  in  this  respect.  Lord  Hardwicke(a)  was  of  opinion  that  such 
covenants  were  proper  subjects  for  the  court's  jurisdiction  ;  but  Lord_ 

(p)  1  Y.  &  C.  C.  C.  60.  (q)  3  Sw.  433,  n. 

(r)  3  Mer.  G67.  In  Clayton  v.  Duke  of  Newcastle,  2  Cas.  in  Cli.  112,  a  contract 
for  the  present  sale  of  lands  made  by  the  heir-apparent  without  authority,  was 
enforced  against  him  when  in  possession. 

[s)  Qu.  for  contract  read  conveyance.  [a)  Furnival  v.  Crew,  3  Atky.  83. 


266      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

Thurlow{^)  seems  strongly  to  have  entertained  an  opposite  opinion,  tliougli 
upon  what  principle  it  is  not  very  easy  to  state;  and  Lord  Northingtou(c) 
seems  previously  to  have  inclined  in  the  same  direction.  But  the  juris- 
diction of  the  court  was  reasserted  and  upheld  by  Lord  E\don,(^d'^  and  is 
now  clearly  established(e)  both  in  this  country  and  in  Ireland,  where, 
from  the  frequency  of  renewable  lifehold  estates,  it  is  of  greater  import- 
ance even  than  in  England. 

§  949.  In  order  for  the  plaintiff  to  succeed  in  obtaining  the  specific 
execution  of  a  renewal,  he  must  show  in  the  first  place  a  distinct  and 
clear  covenant  or  agreement  to  renew  on  the  part  of  the  defendant;  and 
in  the  second,  that  he  has  diligently  pursued  his  right  under  it. 

§  ^^^-  ^^^  leaning  of  the  court  is  said  to  be  against  *constru- 
L  ^-^  ing  covenants  to  amount  to  agreements  for  perpetual  renewals, (_/') 
and  it  is  certain  that  they  will  not  so  hold  them  unless  the  intention  be 
clear  and  free  from  all  ambiguity. (17) 

§  951.  On  this  principle  it  has  been  decided  that  a  covenant  in  a  lease 
to  srrant  a  renewed  lease  which  is  to  contain  all  the  covenants  in  the 
original  lease  will  not  imply  the  insertion  in  the  new  lease  of  a  fresh 
covenant  for  renewal,  which  would  make  the  original  covenant  operate  as 
a  perpetual  renewal  :(/A  the  covenant  for  renewal  has,  it  has  been 
observed,  nothing  to  do  with  the  subject-matter  to  be  granted,  namely, 
the  new  term. 

§  952.  But,  of  course,  where  any  special  words  are  added,  they  may 
vary  the  case :  thus  where  the  covenant  was  to  grant  such  further 
lease  as  the  lessee  should  desire, (t")  or  where  the  covenant  was  to  grant  a 
new  lease  or  leases,  and  so  to  continue  the  renewing  such  lease  or  leases  :(7c) 
and  where  the  lease  was  for  the  lives  of  A.,  B.,  and  C,  and  the  covenant 
was,  on  the  death  of  any  of  them,  the  said  A.,  B.,  or  C,  to  grant  a  new 
lease  for  the  lives  of  the  survivors,  and  a  new  life  to  be  named,  such  lease 
to  contain  all  the  covenants,  including  ''this  present  covenant,"  as  were 
contained  in  the  original  lease  -.(l)  in  all  these  cases  the  covenant  was 
held  to  amount  to  one  for  perpetual  renewal. 

§  953.  It  does  not  come  within  the  scope  of  the  present  work  to  enter 

at  any  length  into  the  construction  of  these  covenants,  and  to  show  what 

particular  forms  of  expression  have,  and  what  other  have  not, 

L         -I  been  held  to  amount  to  a  *covenant  for  perpetual  renewal.     It 

(b)  Somerville  v.  Chapman,  1  Bro.  C.  C.  61 ;  Tritton  v.  Foote,  2  Bro.  C.  C. 
636 ;  Rees  v.  Dacre,  cited  9  Ve.s.  332. 

(c)  Redshaw  v.  Governor  of  Bedford  Level,  1  Ed.  346. 

(d)  Iggulden  v.  May,  9  Ves.  325;  Willan  v.  Willan,  16  Ves.  84. 

(e)  Brown  v.  Tighe,  2  CI.  &  Fin.  396  ;  S.  C.  8  Bli.  N.  S.  272.     See  1  Ed.  348,  n. 
(/)  1  Ed.  349,  n. 

Iff)  Brown  v.  Tighe,  ubi  sup.;  per  Lord  Alvanley,  in  Baynham  v.  Guy's  Hospi- 
tal, 3  Ves.  298. 

(/()  Hyde  v.  Skinner,  2  P.  Wms,  196;  Tritton  v.  Foote,  2  Bro.  C.  C.  636  ;  Rus- 
sell V.  Darwin,  2  Bro.  C.  C.  639,  n. ;  Moore  v.  Foley,  6  Ves.  232  ;  Harnett  v.  Yield- 
ing, 2  Sell.  &  Lef.  549 ;  Iggulden  v.  May,  7  East,  239  ;  see  contra,  Bridges  V. 
Hitchcock,  cited  3  Atky.  88  ;  but  see  S.  C.  cited  7  East,  245. 

(i)  Bridges  v.  Hitchcock,  7  East,  245. 

(/c)  Furnival  v.  Crew,  3  Atky.  83.  (Z)  Hare  v.  Burges,  4  K.  &  J.  45. 


COVENANTS    TO    RENEW.  267 

will  be  suflBcient  to  cite  below  a  few  of  the  more  important  cases  which 
have  been  decided  on  this  question. (?u) 

§  954.  A  clear  agreement  being,  as  we  have  seen,  essential,  it  follows 
that  a  usage  of  granting  renewals,  constituting  what  is  sometimes  vaguely 
called  a  tenant-right,  though  with  the  additional  circumstance  of  expen- 
diture on  the  land,  will  not  amount  to  a  contract  for  renewal,  and  cannot 
be  enforced  as  such.(?i) 

§  955.  It  may  be  desirable  also  to  add,  that  the  proper  form  for  a  lease 
by  trustees,  in  pursuace  of  their  testator's  covenant  for  perpetual  renewal, 
is  for  the  lease  to  recite  the  covenant,  and  to  declare  the  new  lease  to  be 
granted  in  pursuance  of  it,  the  trustees  themselves  not  being  liable  to 
enter  into  a  covenant  for  renewal  similar  to  that  in  the  old  lease. (o) 
This  mode  of  execution  is  directed  by  the  court  even  where  the  covenant 
stipulates  that  in  every  future  lease  there  should  be  inserted  the  like 
covenant  for  renewal. (^>) 

§  956.  In  order  to  entitle  the  lessee  to  claim  the  benefit  of  his  renewal 
by  specific  performance,  his  conduct  in  pursuance  of  his  right  must  have 
been  diligent. 

§  957.  Therefore,  where  the  lease  was  for  renewal  on  the  dropping  of 
one  life,  and  the  application  for  a  renewal  was  not  made  until  two  had 
expired,  the  negligence  of  the  lessee  was  held  to  debar  him  from  specific 
performance. (5) 

§  958.  And  where  there  are  conditions  precedent  to  the  renewal  accord- 
ing to  the  terms  of  the  covenant,  the  lessor  must  show  the  performance 
of  these  as  he  would  have  to  do  in  relation  to  any  other  covenant. (rj 

*§  959.  The  court,  however,  does  not  insist  upon  a  literal  and  i-:i,(A--| 
exact  performance  of  his  part  by  the  lessee,  but  has  granted  per-  L  J 
formance  where  there  has  been  some  laches  on  his  part,  if  excused  by 
fraud  or  surprise,  or  by  unavoidable  accident  or  ignorance  that  is  not  wil- 
ful, provided  that  in  those  cases  where  the  delay  has  not  arisen  from  the 
conduct  of  the  lessor,  his  interest  is  not  prejudiced  by  the  delay  .-(.s)  and 
Lord  Iledesdale,(^]  reviewing  the  cases  in  Ireland  prior  to  the  legislation 
upon  this  subject  came  to  the  conclusion  that,  as  Lord  Thurlow  had 
stated,  "  Equity  will  relieve  where  there  is  mere  lapse  of  time  unac- 
counted for  without  misconduct  in  the  lessee,  or  where  the  lessee  has 
lost  his  right  by  fraud  in  the  lessor."  But  this  relief  is  excluded  by 
wilful  neglect  or  refusal  to  renew  :  and  it  has  been  decided  that  non- 
payment of  the  proportion  of  the  fine  after  demand  made  by  the  lessor, 
who  himself  holds  of  a  superior,  is  such  neglect  and  refusal,  and  there- 
fore disentitles  the  lessee  to  relief.(«) 

(m)  Brown  v.  Tighe,  ubi  sup.  ;  Smyth  v.  Xangle,  2  CI.  &  Fin.  405 ;  Copper 
Mining  Company  v.  Beach,  13  Beav.  478  ;  Chambers  v.  Gaussen,  2  Jon.  &  L.  1)9, 

(n)  Watson  v.  Hemsworth  Hospital,  14  Ves.  324. 

(0)  Copper  Mining  Company  v.  Beach  ;  Hare  v.  Burges,  ubi  sup. 

(p)  Hodges  V.  Blagrove,  18  Beav.  404. 

(q)  Bayley  v.  Corporation  of  Leominster,  3  Bro.  C.  C.  529  ;  Baynham  v.  Guy's 
Hospital,  3  Ves.  295.  (r)  Job  v.  Banister,  26  L.  J.  Ch.  125,  (L.  G.) 

(s)  Eaton  v.  Lyon,  3  Yes.  G90,  particularly  G93,  695. 

{t)  In  Lennon  v.  Napper,  2  Sch.  &  Lef.  682.  See  per  Lord  Thurlow,  in  Bate- 
man  Y.  Murray,  cited  4  Bro.  C.  C.  417. 

(m)  Chestcrman  v.  Mann,  9  Ha.  206.     See  also  City  of  London  v.  Mitford,  14 


268       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

§  960.  The  law  on  this  subject  has  in  Ireland  been  regulated  by  act 
of  parliament.  By  the  statute  19  &  20  Geo.  IH.  c.  30,  mere  neglect, 
where  no  fraud  appears  to  have  been  intended,  is  prevented  from  defeat- 
ing the  interest  of  the  lessee  and  the  right  of  renewal,  unless  where, 
after  a  demand  of  the  fines  by  the  landlords,  lessors,  or  persons  entitled 
to  receive  such  fines,  the  same  have  been  refused  or  neglected  to  be  paid 
within  a  reasonable  time  after  such  demand.  The  law  in  England  being 
unaffected  by  legislative  enactment,  remains  as  it  was  in  Ireland  previous 
to  the  above-mentioned  statute,  and  is  entirely  unaffected  by  the  peculiar 
r*inn  ^^'^  "  local  equity"  administered  on  this  head  *by  the  court  of 
L  J  chancery  in  Ireland. (?;)  As  to  the  Irish  tenantry  acts  and  this 
equity,  it  will,  for  the  purposes  of  this  work,  be  sufficient  to  refer  the 
reader  to  the  case  of  Jackson  v.  Saunders^w)  in  the  house  of  lords,  and 
the  cases  of  Butler  v.  Lord  Portarlington(a:)  and  Alder  v.  Ward(?/)  before 
Lord  St  Leonards,  when  chancellor  of  Ireland. 


[*40T]  *CH  AFTER    II L 

OP  CONTRACTS  OF  PARTNERSHIP. 

§  961.  In  order  that  the  court  shall  in  any  way  interfere  for  the  spe- 
cific enforcement  of  contracts  to  enter  into  partnership,  it  is  necessary, 
as  we  have  already  seen,(o)  that  the  partnership  should  be  for  some 
definite  term,  for  otherwise  it  might  be  dissolved  as  soon  as  entered  upon, 
and  the  interference  of  the  court  thus  become  simply  nugatory.  But 
where  the  agreement  is  thus  for  a  definite  term,  the  court  will  specifically 
execute  it  by  decreeing  the  parties  to  execute  a  proper  partnership  deed, 
and,  if  necessary,  by  restraining  "any  partner  from  carrying  on  business 
under  the  partnership  style  with  other  persons,  and  from  publishing 
notices  of  dissolution. f 6) 

§  962.  Contracts  for  partnership  may  in  some  cases  be  illegal,  as  amount- 
ing to  sales  of  office,  as  contravening  the  laws  regulating  trade,  or  other- 
wise, (c)  It  is  hardly  necessary  to  observe  that  the  court  will  not  in 
any  way  interfere  for  the  benefit  of  parties  claiming  under  such  agree- 
ments. 

§  963.  Again,  where  the  agreement  had  reference  to  the  manufacture 

Ves.  41.  As  to  whether  breach  of  covenants  in  the  lease  is  a  bar  to  a  renewal, 
see  Trant  v.  Dwycr,  2  Bli.  N.  S.  11,  ante,  ^  G48. 

(v)  Job  V.  Banister,  2G  L.  J.  Ch.  125,  (L.  C.)  (w)  2  Dow,  437. 

h)  1  Dr.  &  War.  20.  (ij)  2  Jon.  &  L.  571. 

(«j  Ante,  §  45. 

(/>)  England  v.  Curling,  8  Beav.  12D,  where  the  forms  of  decree  and  injunction 
are  given. 

(c)  See  Hughes  v.  Stathara,  4  B.  &  C.  187;  Knowles  v.  Haughton,  11  Ves.  1G8. 


CONTRACTS    FOR    THE    SALE    OP    SHIPS.  269 

and  sale  of  a  patent  medicine,  Lord  Eldon  considered  that  the  court  could 
not  decree  specific  performance,  because  if  the  recipe  were  a  secret  the 
court  had  no  means  of  enforcing  its  own  orders. ((Z) 


*CH  AFTER    IV.  [*408] 

OF   CONTRACTS   FOR  THE   SALE   OF    SHIPS. 

§  964.  An  agreement  for  the  sale  of  a  ship,  or  of  shares  in  one,  which 
does  not  recite  the  certificate  of  registry,  cannot  be  enforced  in  equity. (a) 
The  statute  by  which  this  subject  is  now  regulated  enacts,  "that  when 
and  so  often  as  the  property  in  any  ship  or  vessel,  or  any  part  thereof, 
belonging  to  any  of  her  majesty's  subjects,  shall,  after  registry  thereof, 
be  sold  to  any  other  or  others  of  her  majesty's  subjects,  the  same  shall 
be  transferred  by  bill  of  sale  or  other  instrument  in  writing,  containing 
a  recital  of  the  certificate  of  registry  of  such  ship  or  vessel,  or  the  princi- 
pal contents  thereof,  otherwise  such  transfer  shall  not  be  valid  or  effectual 
for  any  purpose  whatever,  either  in  law  or  in  equity,"(i)  to  which  is 
added  a  proviso  limiting  the  effect  of  an  error  in  such  recital.  This 
clause,  which  is  a  re-enactment  of  6  Geo.  IV.  c.  110,  s.  31,  departs  some- 
what from  the  language  of  the  older  statutes;  but  it  has  been  decided 
that  this  change  of  language  gives  no  room  to  the  distinction  which  has 
been  attempted  between  actual  transfers  and  executory  agreements  to 
transfer,  and  that  both  are  alike  avoided  by  the  acts,  unless  complying 
with  its  requirements. (c) 

§  965.  IIow  far  actual  fraud  under  these  acts  would  be  *reliev-  i-^c^noi 
able  in  equity  appears  never  to  have  been  decided,  "  but  of  this,"  L  J 
said  Lord  St.  Leonards,  (r/cZ)  "lam  perfectly  clear  that,  so  far  as  the 
authorities  have  gone,  there  have  been  cases  very  much  like  fraud,  and 
yet  no  relief  has  been  given." 


(d)  Newbery  v.  James,  2  Mer.  446.  See  also,  as  to  secret  medicines,  Williams 
V.  Williams,  3  Mer.  157  ;  Green  v.  Folgham,  1  S.  &  S.  398  ;  Yovatt  v.  Winyard,  1 
J.  &  W.  394.     See  also  Lingen  v.  Simpson,  1  S.  &  S.  600. 

(a)  Brewster  v.  Clarke,  2  Mer.  75. 

(6)  8  &  9  Vict.  c.  89,  s.  34.  See  also  17  &  18  Vict.  c.  104,  s.  43,  and  18  &  19 
Vict.  c.  91,  s.  11. 

(c)  Hughes  V.  Morris,  2  De  G.  M.  &  G.  349  ;  S.  C.  9  Ha.  636;  M'Calmont  v.  Ran- 
kin, 2  De  G.  M.  &  G.  403,  418  ;  Coombs  v.  Mansfield,  24  L.  J.  Ch.  513,  (Kinders- 
ley,  V.  C.)  ^ 

(dd)  In  M'Calmont  v.  Rankin,  2  De  G.  M.  &  G.  421,  where  his  lordship  dis- 
cussed the  previous  cases. 

DecexMber,  1858. — 18 


270     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

[*410]  ^CHAPTER   V. 

OF    AGREEMENTS   FOR    SEPARATION    DEEDS. 

§  966.  The  jurisdiction  of  courts  of  equity  to  enforce  tlie  specific 
performance  of  agreements  for  separation,  by  the  execution  of  proper  deeds 
of  separation,  was  established  in  the  house  of  lords,  after  a  learned  argu- 
ment against  it,  in  the  case  of  Wilson  v.  Wilson, f«A  where  Lord  Cotten- 
ham  showed  that  the  law  does  not  now  consider  an  agreement  for  sepa- 
ration so  contrary  to  public  policy  as  to  make  void  all  arrangements  of 
property  arising  out  of  it.  The  court  will  also  carry  out,  by  injunction, 
the  covenant  by  the  husband  to  forbear  from  personal  molestation  of  his 
wife, (6)  But  it  seems  very  doul»tful  whether  it  would  specifically  per- 
form the  covenant  to  live  separately,  and  restrain  by  injunction  a  suit 
for  restitution  of  conjugal  rights. (c) 

§  967.  In  order  to  enable  the  court  thus  to  interfere,  there  must  of 
course  be  a  valid  agreement.  It  is  essential  to  this  that  the  contract  be 
between  persons  capable  of  contracting,  and  therefore,  as  a  husband 
cannot  contract  with  his  wife  without  the  intervention  of  some  third 
person,  a  simple  agreement  between  them  to  live  separate  will  not  be 
enforced  by  the  court.  ((/) 

r*iin  *§  ^^^'  ^^^  *^^^  same  end,  also,  there  must  be  a  good  consi- 
L  -J  deration,  and  as  in  deeds  and  agreements  for  separation  this  is 
sometimes  peculiar,  it  will  be  well  very  briefly  to  allude  to  a  few  of  the 
cases. 

§  969.  It  has  been  decided  that  the  staying  a  suit  in  the  ecclesiastical 
court  for  nullity  of  marriage,  on  the  ground  of  impotency  of  the  hus- 
band, is  a  sufl&cient  consideration  as  against  him  :(>")  and  where  the  hus- 
band had  so  behaved  as  that  the  wife  might  have  obtained  a  divorce  a 
mensd  et  tlioro,  and  she  agreed,  instead  of  prosecuting  her  right,  to 
accept  maintenance  from  the  husband,  this  was  held  a  good  considera- 
tion.(/)  A  good  consideration  is  also  afforded  by  an  engagement  by 
the  trustees  to  indemnify  the  husband  against  the  wife's  debts, (r/)  or 
even  by  a  covenant  to  that  effect  conditional  on  an  annuity,  which  was 
agreed  to  be  paid,  being  secured, (/i)  or,  as  it  seems,  by  a  covenant  of  a 
third  party  to  pay  the  husband's  debts.  (^■) 

§  970.   In  many  of  the  cases  which  have  arisen  on  the  consideration 


(a)  1  Ho.  Lords,  538,  affirming  S.  C.  14  Sim.  405;  Fletcher  v.  Fletcher,  2 
Cox,  99. 

(b)  Sanders  v.  Rodway,  22  L.  J.  Ch.  2.30,  (M.  R.) 

(c)  Wilson  V.  Wilson,  5  Ho.  Lords,  40. 

{d)  Hope  V.  Hope,  26  L.  J.  Oh.  417,  (L.  JJ.;)  Wilkes  v.  Wilkes,  2  Dick.  tOl  ; 
of.  Vansittart  v.  Vansittart,  4  K.  &  J.  62. 

(e)  Wilson  v.  Wilson,  1  Ho.  Lords,  538  ;  S.  C.  14  Sim.  405. 

)f)  Hobbs  V.  Hull,  1  Cox,  445. 

\g)  Stephens  v.  Olive,  2  Bro.  C.  C.  90  ;  Lord  Westmeath  v.  Countess  of  West- 
meath,  .Jac.  126,  141 ;  Elsworthy  v.  Bird,  2  S.  &  S.  372. 

(h)  Wellesley  v.  Wellesley,  10  Sim.  256. 

(t)  Wilson  V.  Wilson,  1  Ho.  Lords,  538. 


AGREEMENTS  TO  COMPROMISE.  271 

of  these  instruments,  the  contention  has  been  on  the  part  of  the  creditors 
of  the  husband  that  the  arranueuient  is  fraudulent  as  against  them.  But 
of  course  a  consideration  wliieh  has  been  lield  good  as  against  the  cre- 
ditors, must  be  good  as  against  the  husband. 


*CH AFTER   VI.  [*412] 

OF    AGREEMENTS    TO    COMPROMISE. 

§  971.  The  court  will  specifically  enforce  private  compromises  of 
rights  in  the  way  in  which  it  will  any  other  agreements  :  and,  inasmuch 
as  the  compromise  of  a  claim  bona  fide  to  which  a  person  believes  him- 
self to  be  liable,  and  of  the  nature  of  which  he  is  aware,  is  a  good  con- 
sideration for  an  agreement,  the  court,  in  enforcing  the  compromise,  will 
not  inquire  into  the  validity  of  the  claim  on  which  it  is  founded. (a) 

§  972.  The  question  arises,  with  regard  to  compromises  of  suits,  how 
far  they  can  be  enforced  by  motion  or  petition  in  the  original  suit  to  stay 
proceedings,  and  how  far  by  a  fresh  suit  for  the  specific  performance  of 
them.  It  seems  that  where  the  immediate  interference  of  the  court  is 
necessary  to  carry  the  agreement  into  effect, — as,  for  instance,  where  a 
party  to  the  agreement  was  liable  to  an  immediate  attachment, — the 
court  will  to  that  extent  interfere  to  execute  the  agreement  by  a  pro- 
ceeding in  the  original  suit :  but  that  if  nol  in  all  other  cases,  at  least 
in  all  cases  where  the  agreement  of  compromise  goes  beyond  the  ordi- 
nary range  of  the  court  in  the  existing  suit,  or  the  equity  sought  to  be 
enforced  is  different  from  that  on  the  record,  or  the  agreement  is  dis- 
puted, or  the  right  to  have  it  enforced  in  the  suit  is  disputed,  there  the 
proper  course  of  proceeding  *is  by  bill  for  the  specific  perform- 
ance of  the  agreement  of  compromise. ^?^)  L  ^^^J 

§  973.  In  the  recent  case  of  Swinfen  v.  Swinfen,(c)  a  bill  for  the  spe- 
cific performance  of  a  compromise  was  dismissed,  but  without  costs  on 
the  ground  that  the  compromise  arose  from  the  mistake  of  counsel. 

{a\  Attwood  V. ,  1  Russ.  353. 

(6)  Forsyth  v.  Manton,  5  Mad.  78;  "Wood  v.  Rowe,  2  Bli.  595,  617;  Askew 
V.  Millington,  9  Ha.  65  ;  Richardson  v.  Evton,  2  De  G.  M.  &  G.  79.  which  seem 
to  overrule  the  dictum  of  Lord  Eldon  in  Rowe  v.  Wood,  1  J.  «fe  \Y.  337  and 
the  case  of  Tibbutt  v.  Potter,  4  Ha.  164. 

(c)  27  L.  J.  Ch.  35,  (M.  R.) 


272      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS, 
[*414]  ^CHAPTER   VI I. 

OF   AWARDS. 

§  974.  The  court  has  ia  many  cases,  and  in  some  of  them  early  ones, 
decreed  the  specific  performance  of  awards,  though  not  made  rules  or 
orders  of  the  court,  for  the  performance  of  some  specific  thing,  as  to 
convey  an  estate,  assign  securities,  or  the  like  ;(a)  but  not  it  would  seem, 
awards  simply  to  pay  money. (i)  The  court  thus  decrees  their  perform- 
ance, '^because,"  to  use  Lord  Eldon's  language,^c)  "the  award  supposes 
an  agreement  between  the  parties,  and  contains  no  more  than  the  terms 
of  that  agreement  ascertained  by  a  third  person." 

§  975.  There  is  an  old  case  in  which  the  court  specifically  enforced 
an  award  not  binding  by  form  of  law.((?)  But  in  Blundell  v.  Brettargh,(e) 
Lord  Eldon  said  he  had  met  with  no  authority  for  the  specific  perform- 
ance of  an  award  by  arbitrators  appointed  for  the  valuation  of  interests, 
where  their  acts,  for  the  purpose  of  carrying  into  effect  the  agreement 
for  an  award,  were  not  valid  at  law,  as  to  the  time,  manner,  or  other 
circumstances,  unless  in  the  cases  of  acquiescence  or  part  performance  : 
and  accordingly  in  the  case  before  him  he  refused  specific  performance 
of  an  agreement  to  sell  at  a  valuation,  which,  on  the  construction  of 

.-.^  *the  agreement,  the  court  held  was  to  be  made  during  the  lives 
L  J  of  the  parties,  one  of  them  having  died  before  the  award  was 
made. 

§  976.  The  interference  of  the  court  in  these  cases  being  in  exercise 
not  of  any  jurisdiction  peculiar  to  awards,  but  of  its  ordinary  jurisdiction 
as  applied  to  the  specific  performance  of  agreements,  it  follows  that  many, 
if  not  all,  the  principles  applicable  to  ordinary  suits  of  that  nature  must 

apply.  (/) 

§  977.  Where  therefore  the  agreement  contained  in  the  submission  is 
such  in  its  character  as,  whether  from  its  unreasonableness,  unfairness, 
or  imprudence,  the  court  would  not  specifically  enforce,  this  will  prevent 
its  interference  in  respect  of  the  award  founded  on  it.(<7) 

§  978.  Nor  can  the  court  interfere  where  the  award  is  excessive  or 
defective ;  not  if  it  be  excessive,  for  so  far  the  arbitrator  has  gone  be- 
yond his  authority,  and  there  is  no  binding  agreement  between  the  par- 
ties :  not  if  it  be  defective,  because  the  parties  had  agreed  to  be  bound 
by  his  decision  on  the  whole,  and  not  on  part  of  the  matters  submitted 
to  him.^/i) 

§  979.  The  objection  arising  from  unreasonableness,  not  of  the  sub- 
mission but  of  the  award  itself,  the  court  is  less  willing  to  entertain; 
for  the  arbitrators  being  judges  of  the  parties'  own  choosing,  it  has  been 

(a)  Norton  v.  Mascall,  2  Vern.  24 ;  Hall  v.  Hardy,  3  P.  Wms.  187. 
?6)  Note  of  reporter,  .'!  P.  Wms.  190. 

(c)  In  Wood  V.  Griffith,  1  Sw.  54 ;  per  Turner,  L.  J.,  in  Nickels  v.  Hancock, 
1  De  G.  M.  &  G.  300. 

(d)  Norton  v.  Mascall,  ubi  supra.  (e)   11  Ves.  232,  241. 

(/)  Nickels  v.  Hancock,  7  De  G.  M.  &  G.  300.  (y)  S.  C.    Sec  ante,  g  254. 

(/()  Nickels  v.  Hancock,  7  De  G.  M.  &  G.  300. 


AGREEMENTS    TO    REFER    TO    ARBITRATION.         273 

held  that  the  award  cannot  be  objected  to  by  cither  of  the  parties,  on 
the  ground  of  its  being  unreasonable. (4)  This  principle  was  stated  and 
acted  on  by  Lord  Eldon  in  Wood  v.  Griffith, (/c)  where  his  lordship  en- 
forced the  specific  performance  of  an  award  which  ordered  the  sale  of 
an  estate  under  circumstances  which  greatly  depreciated  its  value.  Never- 
theless, it  cannot,  *it  seems,  be  laid  down  as'  an  universal  rule  r^iip-i 
that  the  court  will  not  consider  the  unreasonableness  of  an  award ;  L  J 
for,  in  a  previous  case  before  the  same  judge, (^)  he  refused  the  specific 
performance  of  an  agreement  to  sell  an  estate  at  such  price  as  a  valuer 
should  award,  the  award  having  been  made,  partly  in  consideration  of 
circumstances  which  threw  a  doubt  on  the  valuations  having  been  made 
with  due  attention  to  accuracy.  And  in  a  case(m)  before  Sir  Thomas 
Plumer,  M.R.,  it  was  held  that  the  fact  that  the  sale  was  agreed  to  be 
at  a  valuation,  to  be  fixed  by  arbitrators,  will  not  prevent  the  court  from 
inquiring  into  the  adequacy  of  the  consideration.  And,  again,  in  a  re- 
cent case,(»)  in  which  the  award  was  objected  to  as  unreasonable,  but  it 
was  contended  on  the  other  side  that  the  court  could  not  entertain  the 
objection.  Lord  Justice  Turner,(o)  after  expressing  his  dissent  from  the 
observations  of  Lord  Eldon  in  Wood  v.  Griffiths,  said,  "If  it  be  a  fair 
subject  for  discussion  and  consideration,  whether  one  course  or  another 
course  be  the  right  one  to  be  taken  by  parties  who  have  submitted  their 
differences  to  arbitration,  and  have  said  that  they  will  abide  by  the  deci- 
sion of  the  arbitrator,  I  might  agree  that  the  judgment  of  the  arbitrator 
upon  that  question  must  decide  the  point.  But  here  the  judgment  of 
the  arbitrator  goes  to  the  length  of  destroying  the  rights  of  one  of  the 
parties  to  the  agreement,  though  the  parties  never  authorized  3Ir.  Carp- 
mael  to  decide  that  any  one  of  them  had  no  right,  and  should  acquire 
no  interest  in  the  subject  in  dispute,  but  only  agreed  that  he  should 
determine  the  mode  in  which  their  rights  and  interests  should  be  regu- 
lated. It  seems  to  me,  therefore,  that  if  it  was  necessary  to  decide  this 
question  upon  the  point  of  unreasonableness,  that  point  alone  would  be 
sufficient  to  decide  it." 


*CHAPTER   VIIL  [*417] 

OF   AGREEMENTS   TO   REFER  TO    ARBITRATION. 

§  980.  With  regard  to  agreements  to  refer  to  arbitration,  it  is  clear  that 
the  court  will  not  entertain  suits  for  their  specific  performance, — a  prin- 
ciple, in  the  first  place,  it  seems,  acted  upon  by  Lord  Thurlow  in  a  case 
of  Price  v.  Williams,(o)  and  which  has  been  since  well  established. (6) 

(i)  Per  Lord  Hardwicke  in  Ives  v.  Metcalfe,  1  Atky.  64. 

h)   1  Sw.  43.     See  ante,  §  254.  (l)  Emery  v.  Wase,  8  Ves.  505. 

hn)  Parken  v.  Whitby,  T.  &  R.  3G6. 

(n)  Nickels  v.  Hancock,  7  De  G.  M.  &  G.  300.  (0)  p.  325. 

(a)  Referred  to  6  Ves.  818. 

(6)  Street  v.  Rigby,  6  Ves.  815;  per  Sir  W.  Grant  in  Gourlay  v.  Duke  of  So- 


274       FEY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

In  a  recent  case,  tlie  lords  justices  upon  this,  amongst  other  grounds, 
refused  to  compel  the  specific  execution  of  a  bond  to  refer  to  arbitration. (c) 
There  is  a  case(cZ)  before  Sir  John  Leach,  somewhat  briefly  reported  as 
to  its  circumstances,  which  appears  in  some  degree  at  variance  with  the 
cases  already  stated  ;  for  there  the  vendor  refusing  to  permit  the  referees 
to  come  upon  the  laud,  the  court  compelled  him  to  permit  the  valuation. 
§  981.  Though  the  court  will  thus  refuse  specifically  to  enforce  refer- 
ences to  arbitration,  an  inequitable  refusal  of  a  plaiutifi"  to  make  such  a 
reference  may  disentitle  him  to  the  aid  of  the  court,  on  the  principle 
that  he  who  seeks  equity  must  do  equity.  Thus,  where  a  deed  was  exe- 
cuted which  created  a  lien  for  the  amount  of  a  solicitor's  bills  and 
advances,  the  amount  of  which  was  to  be  settled  by  arbitration,  and 
r*zLlsn  *^^  arbitrator  died  before  the  award  was  *made  :  in  a  suit 
L  -I  seeking  the  reconveyance  of  the  property,  Alderson,  B.,  held 
that  the  agreement  between  the  parties  was  composed  of  two  distinct 
parts, — the  first  admitting  that  some  balance  was  due  to  the  solicitor, 
and  the  second,  an  agreement  for  a  specific  mode  of  ascertaining  that 
balance ;  that  the  latter  part  alone  had  failed ;  that  the  former  part  re- 
mained entire,  and  that  the  court  would  not  decree  a  reconveyance  with- 
out the  plaintiff's  consenting  to  do  equity  by  having  the  accounts  taken 
by  the  master,  (e) 

merset,  19  Ves.  429;  Agar  v.  Macklew,  2  S.  &  S.  418:  Gervcaise  v.  Edwards, 
2  Dr.  &  W.  80. 

(c)  South  Wales  Railway  Company  v.  Wytbes,  5  De  G.  M.  &  G.  800. 

{(l)  Morse  v.  Merest,  6  Mad.  26.  (e)  Cheslyu  v.  Dalby,  2  Y.  &  C.  Ex.  170. 


INDEX. 


The  pages  referred  to  are  tliose  between  brackets  [        ]. 

ACCEPTANCE.     (See  Proposal  and  Acceptance.) 
ACCIDENT.     (See  Consideration,  Failure  of.) 
ACQUIESCENCE,  contract  modified  by,  220. 
in  transaction  based  on  fraud,  308. 

breach  of  covenant,  a  bar  to  specific  performance  of,  321. 
ACT  OF  GOD  renderint^  one  alternative  impossible,  297. 

delay  arising  from,  384. 
ACT  OF  OWNERSHIP.     (See  Payment  into  Court,  Waiver.) 
ADMISSION.     (See  Pleading,  Statute  of  Frauds,  Part  Perfcr.nance.) 
AGENT.     (See  Auctioneer,  Pleading.) 
suing  as  principal,  51. 
when  he  cannot  appear  as  principal,  52. 
promoters  of  a  company  not  agents  of  company,  64, 
appearing  on  contract  as  agent,  67. 

principal,  67. 

suing,  69. 
being  sued,  69. 
may  be  appointed  by  parol,  68. 

incapacity  to  contract  with  principals,  74.  ^ 

•what  contracts  by,  not  enforced,  115. 
signature  of,  agreement  by,  163. 

what  authority  required  for  such  signature,  163. 
may  be  by  parol,  163. 

exception  as  to  agents  of  corporations,  164. 
by  ratification,  164. 
revocation  of  agency,  164.       / 
auctioneer,  164. 
clerks  of  agents,  165. 
solicitor,  165. 

misrepresentation  by,  193. 
suppression  of  a  fact  by,  207. 
fraud  by,  210. 
AGREEMENT.     (See  Contract.) 
AGREEMENT  TO  MAKE  WILLS,  enforced,  60,  298. 
AMALGAMATION  of  companies,  efifect  of,  on  contracts,  60,  296. 
ANNUITY,  bill  by  vendor  of,  12. 

sale  of,  defeated  by  death  of  life  before  the  contract,  263. 
sectis  by  death  after,  267. 
ANSWER.     (See  Pleading.) 


276      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

ARBITRATORS,  price  to  be  ascertained  by,  95,  96. 

agreements  to  refer  to,  not  enforced,  417. 
ASSIGNEES.     (See  Banknq^taj.) 
ASSIGNMENT  of  contract,  51. 

by  way  of  mortgage,  52. 
exceptions  to  assignability  of  contracts,  52. 
where  contract  personal,  52,  G8. 
where  a  proviso  against  assignment,  55. 
where  illegal,  55. 
of  contract  affected  by  fraud,  203. 
offer  not  assignable,  57. 
of  the  property,  57. 
ATTORNEY,  agreements  for  sale  of  business  of,  17. 
contracts,  in  absence  of,  110. 
acting  for  both  parties,  112. 
how  far  agent  to  sign  an  agreement,  165. 
AUCTIONEER,  an  agent  for  both  parties  at  the  auction,  164. 
secus  in  private  contract,  164. 
clerk  of,  an  agent,  165. 
selling  without  authority,  215. 
AUTHOR  and  publisher,  contract  of,  is  personal,  49,  53. 
AWARDS,  unreasonableness  in  submission,  a  defence,  117,  415. 

award  often  no  defence,  117,  415. 
illegality  in,  a  defence,  144. 

void  as  to  one  alternative,  binds  as  to  the  other,  297. 
jurisdiction  in  enforcing,  414. 

where  not  binding  at  law,  414. 
grounds  of  defence,  415. 
where  award  excessive,  415. 

BANKRUPTCY  Court  no  jurisdiction  in  specific  performance,  1,  n. 

assignees  in,  when  parties,  37. 

what  contracts  do  not  pass  under,  53,  55. 

what  contracts  by  assignees  not  enforced,  115. 

assignees  enforcing  contracts  must  covenant  personally,  279. 
secus,  when  enforced  against  them,  280. 

of  plaintiff  a  bar  to  suit,  280. 
BARON  AND  FEME,     (See  Feme  Covert,  Marriage,  Separation  Deed.) 

contracts  between,  enforced,  3. 

contract  by,  to  sell,  134,  n. 

not  enforced,  where  wife  refuses,  293. 
BILL.     (See  PJeading.) 
BOND.     (See  Penalty.) 

condition  of,  an  agreement,  28. 
BREACH  OF  TRUST,  no  contract  necessitating,  enforced,  113. 

by  quasi  trustees,  115. 

by  railway  directors,  115. 
BUILDING  CONTRACTS,  formerly  enforced,  15. 

when  not  enforced,  19. 

when  enforced,  20. 

CESTUIS  QUE  TRUST.     (See  Parties.) 
CESTUI  QUE  VIE.     (See  Death.) 
CHAMPERTY,  assignments  void  for,  56. 
CHARTER-PARTY,  specifically  performed,  13. 
CHATTELS,  contract  for,  not  generally  enforced,  13. 
enforced  where  part  only  of  contract,  13. 

where  chattels  unique,  13. 

where  defendant  alone  can  supply  plaintiff's  requirements,  14. 

where  savoring  of  realty,  14. 

where  trust  constituted,  15. 


INDEX.  277 


CHATTELS,  continued. 

enforced  where  delivered  by  instalments,  16. 
warranty  in  contracts  for  sale  of,  2G2,  2G3. 
CHOSE  IN  ACTION,  agreements  to  assign,  3. 
CIYHj  law  did  not  specifically  perform  contracts,  I. 

rule  of,  as  to  inadequacy  of  consideration,  13L 
CLAIM,  suit  instituted  by,  327. 

when  leave  required,  327. 
COLLIEIiY.     (See  .Vines.) 

COMPANY.     (See  Anmhjamation,  Corparaiion,  Eailway.) 
purchase  under  compulsory  powers  of,  9. 
when  not  enforced  in  equity,  9. 
enforced,  10. 
agreement  to  take  shares  in,  19. 
contracts  by,  devolving  statutory  powers,  illegal,  57. 
amalgamation,  GO. 

when  liable  for  contracts  of  promotors,  Gl. 
contracts  by  directors  in  breach  of  their  trust,  115. 

enforced  after  expiration  of  powers,  117,  135 
hardship  on  members  of,  disregarded,  121. 

companies  regarded,  124. 
agreement  for  division  of  profits,  148. 

use  of  line  of  railway,  149. 
agreement  to  pay  parliamentary  costs  of  another,  150. 
purchases  for  extraordinary  purposes,  153. 
bound  to  apply  its  funds  for  purposes  of  its  act,  150,  153. 
contract  bv,  formalities  in,  155. 
COMPENSATION,  origin  of  jurisdiction,  2,  344. 
as  to  fines,  141. 

and  rescission,  conditions  for,  mutually  exclusive,  310. 
where  vendor  plaintiff,  344. 

purchaser  plaintiff,  137,  345. 
how  differing  from  damages,  345. 
where  defect  not  material,  348. 
how  calculated,  349. 
for  difference  in  tenure,  350. 
incumbrances,  350. 
tithes,  351. 
indemnity  by  way  of,  351. 
for  matters  subsequent  to  contract,  355. 

deterioration,  355. 
conditions  of  sale  for,  355. 
none,  where  not  ascertainable,  140,  352. 

it  would  prejudice  third  parties,  141. 
lai'ge  part  wanting,  141. 
material  part  wanting,  346. 
material  difference,  349. 

purchaser  aware  of  vendor's  want  of  title,  142. 
misrepresentation,  343,  352. 
it  would  be  an  indemnity,  351. 
defect  is  patent,  353. 
excluded  by  contract,  354. 
after  complete  execution  of  contract,  355. 
COMPROMISES  not  avoided,  by  what  errors,  107,  412. 

agreements  for,  how  enforced,  412. 
CONCEALMENT.     (See  Fraud.) 
CONDITIONS.     (See  Bond,  Contract  Conditional.) 
no  change  of  property  till  performance  of,  265. 
non-performance  a  defence,  287,  404. 
express  or  implied,  287. 
in  railway  contracts,  287. 


278       FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

CONDITIONS,  continued. 

for  avoidance  of  contract,  307. 
CONDITIONS  OF  SALE, 

for  rescission,  (and  see  Rescission,)  307. 
how  regarded,  340. 
where  ambiguous,  341. 
sense  not  extended  by  implication,  342. 
will  not  apply  where  fraud  or  misrepresentation,  343. 
facts  stated  in,  343. 

for  compensation,  (and  see  Compensation,)  355. 
reserving  rents  to  vendor,  379. 

for  interest  on  delay  "  from  any  cause  whatever,"  380. 
for  interest  construed  as  dependent  on  one  for  delivery  of  abstract,  384. 
restricting  payment  of  interest  by  purchaser  in  possession,  388. 
CONSENT  to  contract,  in  what  it  consists,  110,  n. 

of  third  persons  required,  292. 
CONSIDERATION,  additional,  proved  by  parol,  233. 
executory  when  a  bar  to  performance,  240. 
in  agreements  for  separation,  411. 
CONSIDERATION,  FAILURE  OP,  a  defence,  262. 
events  happening  before  conclusion  of  contract,  262. 

after  conclusion,  2G6. 
determination  of  subject-matter  after  filing  of  bill,  267. 
CONSIDERATION,  INADEQUACY  OF,  how  it  appears  in  the  contract,  127. 
difference  between  cases  of  vendor  and  purchaser,  127. 
with  other  circumstances  a  defence  in  specific  performance,  127. 

and  ground  for  rescission,  128. 
alone,  as  ground  for  rescission,  128. 

a  defence  in  specific  performance,  128. 
when  decided,  131. 
CONTRACT.     (See  Contract,  Terms  of:  Ilonorary  Engagements,  Proposal  and 
Acceptance.) 
alternative,  247,  296. 
building.     (See  Building  Contract.) 
conditional,  135,  265,  287. 
divisible  or  not,  237. 

with  several  purchasers,  39. 
property  in  one  lot,  237. 

of  different  kinds,  238. 
distinct  lots,  238. 
different  prices,  239. 
cross  contracts,  239. 
foreign,  24. 
negative,  329. 
revocable,  18. 
unilateral,  135,  317,  321. 
voluntary,  25. 

under  compulsory  powers  constituted  by  notice,  9. 
when  not  enforced  in  equity,  9. 
enforced,  10. 
may  give  jurisdiction,  24. 
as  to  land  abroad,  24. 
with  a  penalty,  26. 

signed  by  one  party  only  not  revocable,  76. 
constituted  by  representation,  (see  Representation,)  84. 
in  deed  poll,  137. 
when  concluded,  in  sales  by  court,  263. 

in  private  contracts,  264. 
in  conditional  contracts,  265. 
effect  of,  in  transferring  property,  377. 
CONTRACT,  CERTAINTY  OF,  want  of,  in  sales  of  goodwill,  17. 


INDEX.  279 

CONTRACT,  CERTAINTY  OF,  continued. 

different  at  law  and  in  equity,  102. 

what,  required,  102. 

contract  discrepant  with  itself,  103. 

subsequent  ascertainment  of  things  uncertain  at  time  of  contract,  107,  108, 
lot). 
CONTRACT,  COMPLETENESS  OF,  essential  to  performance,  90,  159. 

when  ascertained,  91. 

where  incomplete  from  defendant's  default,  91. 

incompleteness  is  made  good  from  contract  itself,  91. 

as  to  subject-matter,  92. 
parties,  94. 

as  to  price,  94. 

when  not  ascertained,  94. 

when  mode  of  ascertainment  indicated,  94. 

as  to  terms  of  contract,  98. 
CONTRACT,  EQUALITY  OF,  essential  to  performance,  90. 

in  what  it  consists,  106,  n. 
CONTRACT,  FAIRNESS  IN,  essential  to  performance,  90,  lOG. 

in  what  it  consists,  lOG. 

time  of  deciding,  107. 

in  compromises,  107. 

want  of  knowledge  in  one  party,  108,  112. 

surrounding  circumstances  regarded,  110. 

unfairness  not  intentional,  111. 

suppression  of  a  fact.  111. 

intoxication  of  party,  112. 

where  contract  would  injure  third  persons,  112,  141. 

in  sales  of  reversions,  124. 
CONTRACT,  HARDSHIP  OF,  a  bar  to  performance,  116. 

when  decided,  116,  117. 

arising  from  plaintiff's  subsequent  acts,  118. 

patent  or  latent,  119. 

arising  from  defendant's  own  acts,  120. 

in  contracts  by  companies,  121. 

liability  to  forfeiture,  121. 

other  Habilities,  122,  123. 
CONTRACT,  ILLEGALITY  OF,  devolving  statutory  powers,  5.1. 

a  bar  to  performance,  143. 

nature  of  the  defence,  143. 

where  the  defendant  has  received  the  benefit  of  plaintifFs  performance,  144. 

in  awards,  144. 

noticed  by  the  court  though  not  put  in  issue,  145. 

clearness  of,  required,  145. 

where  a  trust  is  constituted,  145. 

where  contract  is  rendered  illegal  by  subsequent  legislation,  269,  294. 

contract  modelled  to  avoid,  294. 
CONTRACT,  TERMS  OF,  essential  and  non-essential,  2,  97,  272,  293,  312. 

what,  essential  to  completeness,  98. 

how  far  must  go  into  detail,  98.  ^ 

implied,  99. 

in  sale  of  land,  99. 

in  agreement  to  renew,  99. 

for  underlease,  100. 
as  to  usual  stipulations,  100. 
rebutted  by  express  term,  101. 
or  by 'notice,  100,  101. 

classification  of,  by  jurists,  99,  ?i. 

express,  not  affected  by  notice,  101. 

negative,  244,  245. 


280      PRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

CONTRACT  ULTRA  VIRES  of  the  company,  entered  into  by  promoters  not 
enforced,  64. 
by  trustees  not  enforced,  114. 
by  corporations,  (see  Corporations,)  147. 
CONTRAVENTION  OF  THE  CONTRACT,  ACTS  IN,  a  bar  to  suit,  282. 
in  case  of  leases,  283. 

purchases,  284. 
as  to  covenants  to  renew,  285,  405. 
no  bar  where  breaches  small,  285. 

not  wilful,  285. 
nominal,  285. 
in  cases  of  breach  being  waived,  285. 
CONVEYANCE,  distinction  between  question  of,  and  of  title,  374. 
CORPORATIONS,  powers  of  contracting,  147. 
their  contracts  presumed  good,  147. 
where  presumption  is  rebutted,  147. 

where  defeating  objects  of  incorporation,  149. 
whei'e  objects  are  foreign  to  incorporation,  150. 
not  where  for  something  involved  in  object  of  the  incorporation,  151. 
nor  where  variation  only  of  means,  semble,  152. 
where  contract  binds  the  corporation  though  ultra  vires,  153. 
agent  of  cannot  be  appointed  by  parol,  164. 
part  performance  supplies  want  of  seal  in  contract,  177. 
fraud  by,  210. 
COVENANTS,  farming  not  enforced,  10. 
where  breaches  are  frequent,  17. 
to  be  entered  into  by  executors  of  proposed  lessee,  49. 
enforced  against  purchasers  with  notice,  59. 
entering  into  a  covenant  to  do  a  thing  is  no  performance  of  an  agreement 

to  do  the  thing,  240,  241. 
by  assignees  in  bankruptcy,  279. 
by  trustees,  280,  n. 
breach  of,  a  bar  to  suit  for  lease,  283. 
suit  on,  barred  by  acquiescence,  321. 
COVENANT  FOR  FURTHER  ASSURANCE,  how  enforced,  59. 
COVENANT  FOR  RENEWAL,  enforced  by  assignee,  51.       _ 

against  purchaser  with  notice,  59. 
implication  as  to  length  of  new  term,  99. 
when  enforced  without  contribution  to  fine,  117. 
breach  of  covenants  in  lease,  no  bar  to  suit  for,  285,  405. 
jurisdiction  of  equity  in  enforcing,  402. 
what  amounts  to  such  a  covenant,  402. 
usage  to  renew  not  enforced,  404. 
renewals  by  trustees,  404. 
lessee  must  be  diligent,  404. 
in  Ireland,  405. 
CREDITORS.     (See  Judgment  Creditors.) 

enforcing  a  contract  entered  into  by  debtor,  48. 
CY  PRES  EXECUTION  OF  CONTRACTS, 

where  vendor  has  not  the  exact  estate  be  contracted  to  sell,  (see  Compen- 
sation,) 140. 
where  defendant  incapable  of  literally  performing,  203. 
where  contract  otherwise  illegal,  294. 

or  impossible,  295. 
in  railway  contracts,  295. 

DAMAGES,  why  inadequate  remedy,  5,  8. 
where  adequate,  11. 
where  not  an  accurate  satisfaction',  15. 
actions  for,  restrained,  335,  338,  339. 
compensation,  how  differing  from,  345. 


INDEX.  281 

DAMAGES,  continued. 

when  ascertained  in  equity,  345,  395. 

liquidated.     (See  PenaUtj.) 
DEATH  of  party,  contract  enforced  notwithstanding,  3. 
secus  when  personal  qualities  required,  49. 

of  vendor,  47. 

of  purchaser,  48. 

of  proposed  lessee,  49. 

of  cestui  que  vie,  2C)?>,  2G7. 
DEBT,  contract  to  purchase  enforced,  4. 
DEEDS,  stipulation  for  execution  of,  241. 

loss  of,  a  bar  to  vendor's  suit,  281. 
DEFAULT  OF  PLANTIFF.     (See  Performance  of  his  part  by  Plaintiff.) 
DEFECT  IX  SUBJECT-MATTER,  patent,  misrepresentation  as  to,  200. 
no  compensation  for,  353. 

a  defence,  248. 

not  when  patent,  248. 

what  are  latent  defects,  249. 

unknown  to  both  parties,  250. 

variation  not  a  defect,  250. 

where  description  is  vague,  250. 

in  sale  with  all  faults,  251. 

may  be  a  ground  for  compensation,  251. 
or  for  rescission,  252, 

arising  after  contract,  (see  Consideration,  Failure  of.)  262 
DELAY.     {^&Q  Time,  Lapse  of.) 
DEMURRER.     (See  Pleading.) 
DEPOSIT,  action  for,  restrained,  335. 

interest  on,  384,  394. 

power  of  the  court  over,  394. 

where  vendor  is  plaintiff,  394. 
where  purchaser  is  plaintiff,  395. 
DETERIORATION,  compensation  for,  355. 

borne  by  vendor,  386. 
purchaser,  386. 
DETINUE,  execution  in,  specific,  14. 
DEVISEE  of  vendor  when  a  party,  47. 

of  purchaser  when  a  party,  48. 
DRUNKARD.     (See  Intoxication.) 

ELECTION  to  proceed  at  law  or  in  equity,  25. 

EVIDENCf^,  extrinsic,  to  prove  identity  of  actual  thing  and  thing  described,  92 
of  one  writing  referred  to  in  another,  166. 
parol,  to  prove  unfairness  in  contract,  106,  213. 

let  in  by  part  performance,  (see  Part  Performance,)  188. 
to  prove  mistake  in  contract,  213. 

whether  admissible  for  plaintifiP,  227. 
of  parol  variation,  what,  220. 
to  rectify  contract  must  be  clear,  223. 
of  simple  rescission,  304. 
of  novation,  303. 
of  agreement  to  rescind,  304. 
parol  in  equity,  305. 
iDy  conduct,  306. 
evidence  must  be  clear,  306. 
and  title,  distinction  between,  375. 
EXECUTOR  of  vendor  enforcing  contract,  47. 
of  purchaser  when  a  party,  48. 
of  proposed  lessee,  49. 

not  liable  on  contracts  involving  personal  qualities,  49. 
EXPECTANCIES,  agreement  as  to,  3. 


282     FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

EXPECTANCIES,  continued. 
sale  of,  not  illegal,  56. 
at  law  void,  397. 
secus  in  equity,  397. 
is  only  enforceable  against  contractor  personally,  400. 

FAULTS.     (See  Sale  with  all  Faults.) 
FELONY  of  Dlaintiffa  bar  to  suit,  28L 
FEME  COVERT.     (See  Baron  and  Feme.) 

when  capable  of  contracting,  72,  n. 
FIRE.     (See  Deeds,  Consideraiion,  Failure  oj.) 
FORFEITURE,  treated  as  a  penalty,  30. 

liability  to,  a  hardship,  121. 
FRAUD.     (See  Misrej)resenfation.) 

ground  of  relief  in  cases  of  representation  as  to  things  past,  84. 

ground  for  rescission,  106,  308,  309. 

inadequacy  of  consideration  may  amount  to,  128,  129. 

being  privy  to  fraud  on  a  power  a  bur  to  relief,  140,  142. 

takes  agreement  out  of  Statute  of  Frauds,  171. 

in  refusing  to  execute  a  defeazance,  172. 

in  marrying  in  fraud  of  an  agreement  for  a  settlement,  172. 

in  case  of  wills,  173. 

in  not  reducing  agreement  into  writing,  173. 

what  constitutes,  177. 

modes  in  which  fraud  may  be  set  up,  206. 

suppression  of  a  fact,  206. 

by  purchaser,  207.  • 

employment  of  a  puffer  when  a  fraud,  (see  Puffer,)  208. 

by  corporations,  210. 

of  agent,  210, 

waiver  of,  210. 

promise  made  at  execution  of  instrument  and  not  kept,  fraud,  232. 

not  protected  by  conditions  of  sale,  343. 

no  compensation  where  there  is,  352. 

in  sales  of  ships  not  reciting  certificate,  408,  n. 

GOODWILL,  contract  for  sale  of,  when  enforced,  17. 
defined,  17. 

HARDSHIP.     (See  Contract,  Hardship  of;  Time,  Lapse  of.) 
HEIR  of  vendor  when  a  party,  47. 

purchaser  when  a  party,  48. 

bound  by  admission  in  ancestor's  answer,  171. 

of  vendor  not  bound  by  admission  of  purchaser,  171. 
HIRING  AND  SERVICE,  contracts  for,  not  enforced,  22,  245. 

contracts  for,  for  life,  22,  n. 

contract  for  considered  hard,  124, 
HONORARY  ENGAGEMENTS,  not  contracts,  84,  86. 

where  part  of  an  arrangement  is  contract,  part  honorary,  246. 
HUSBAND  AND  WIFE.     (See  Baron  and  Feme.) 

IDENTITY.     (See  Evidence.) 
IGNORANCE.     (See  Mistake.) 

ILLEGALITY,     (See  Assignment,  Coydract,  llkgality  of.) 
IMPOSSIBILITY  OF  PERFORMANCE  by  plaintiff,  when  an  excuse,  275, 
by  defendant,  a  defence,  290, 
when  to  be  judged  of,  291. 
contract  modelled  to  avoid,  295, 
of  one  alternative,  296. 
originally,  296. 
by  subsequent  act  of  God,  297. 

other  party,  300, 


INDEX.  283 

IMPOSSIBILITY  OF  PERFORMANCE,  continued. 

by  subsequent  act  of  stranger,  300. 
INCAPACITV.     (Sec  Impos.nOilli;/,  Lunatics.) 
of  court  to  enforce  contract  a  bar  to  suit,  IG. 

to  perform  part  of  the  contract  a  defence  as  to  rest,  237. 
of  plaintiff  to  perform  bis  part  when  an  excuse  for  non-performance,  275, 
of  defendant  to  perform  his  part  a  defence,  290. 
to  contract  of  parties,  a  bar,  71. 

in  case  of  agreements  for  separation,  410. 
INCOMPLETENESS.     (See  Contract,  Completeness  of.) 
INDEMNITY  by  purchaser  to  vendor  against  covenants,  122. 

by  way  of  compensation,  351, 
INEQ'LTALITY.     (See  Contract,  Equality  of.) 
INFANT,  heir,  48. 

incapacity  of  suing  or  being  sued  in  specific  performance,  133. 
infancy  no  excuse  for  non-performance  by  plaintiff,  274. 
INJUNCTION,  not  where  increased  rent  is  reserved,  29. 

distinction  between  penalty  and  damages  not  discussed  on  motion  to  dis- 
solve, 31. 
against  acting  at  a  theatre,  245,  246,  330. 
may  be  granted  where  court  cannot  enforce  positive  part  of  contract,  245. 

where  no  distinct  negative  stipulation,  246. 
connection  w^ith  specific  performance,  329. 
a  mode  of  specific  performance,  329. 

where  contract  a  negative  one,  329. 
against  carrying  on  trades,  330, 
where  acts  complained  of  are  recurring,  331. 
to  restrain  applications  to  parliament,  331. 

husband  molesting  wife,  410. 
mandatory,  332. 
ancillary  to  specific  performance,  334. 

to  preserve  property  in  statu  quo,  334. 

against  actions,  335.  ^ 

matrimonial  suits,  335. 
restraining  third  parties,  335. 
against  action  for  damages,  335,  338,  339. 
INSOLVENT,  contract  by,  when  good,  110. 

cannot  sue  as  plaintiff  for  performance,  280. 
INTENTION,  representations  of,  84,  86,  88. 

to  sign,  161. 
INTEREST,  where  vendor  is  in  receipt  of  rents,  purchase-money  beiuT  un- 
paid, 377. 
■where  interest  much  more  than  rents,  378. 
■where  delay  due  to  vendor,  378, 
where  title  made  out  in  chambers,  378, 
■where  delay  due  to  purchaser,  379. 
where  contract  reserves  rents  to  vendor,  379, 
purchaser  discharged   from  interest  by  appropriation  of  money  and  no- 
tice, 379. 
•when  purchaser  makes  profit  on  appropriated  money,  380. 

unappropriated  money,  385. 
condition  for  payment  of,  on  delay  "from  any  cause  whatever,"'  380. 

construed  as  dependent  on  one  for  delivery  of  abstract,  384. 
amount  on  which  payable,  384. 
rate  of,  384. 

■»vhere  vendor  is  in  actual  possession,  387. 
where  purchaser  is  in  possession,  387. 
condition  restricting  his  payment  of,  388. 
on  reversions,  389. 
INTOXICATION  of  party  to  the  contract,  112,  215. 
set  up  as  defence  by  third  party,  112. 


284      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS, 

ISSUE,  quasi  parties  to  marriage  contracts,  42. 

JUDGMENT  CREDITORS,  where  parties  to  suit,  32. 

LACHES.     (See  Time,  Lapse  of.) 

LEASE,  agreement  for,  enforced  against  executors  of  lessee,  49. 

by  assignee,  5L 

how  far  a  personal  contract,  53,  55. 

by  person  out  of  possession,  57. 

where  commencement  of  term  not  stated,  98. 

where  length  of  term  not  stated,  98. 

where  lives  not  named,  98. 

suit  for  sale  of,  heard  after  determination  of  the  term,  267. 

acts  in  breach  of  covenants  a  bar  to  suit  for  lease,  283. 

ante-dated  to  allow  of  action  of  covenant,  284. 

of  copyholds,  for  longer  than  custom  allows,  294. 

underlease  not  enforced  on  purchaser  of,  349. 

when  lessor's  title  not  investigated,  360. 

waiver  of  right  to  investigate,  366. 
LETTERS,  to  prove  a  contract,  165. 

referred  to  for  signature,  165. 

must  refer  to  the  other  paper,  166. 
and  not  to  terms  in  parol,  166. 

supplying  a  term  wanting  in  the  agreement,  167. 

constituting  the  agreement,  168. 

letter  addressed  to  third  person,  168. 

letters  repudiating  contract,  168. 

contract  constituted  by,  how  to  be  pleaded,  170. 
LIEN  of  purchaser,  bill  for,  in  the  alternative,  396. 
LOTS.     [See  Contract  divisible  07' not.) 
LUNATICS,  incapable  of  contracting,  73. 
except  during  lucid  intervals,  73. 

effect  of  lunacy  subsequent  to  contract,  73,  97. 

mental  incapacity,  less  than  lunacy,  110. 

MAINTENANCE.     (See  Champerty.) 

MANOR,  contract  for  sale  of,  109. 

MARRIAGE  may  be  evidence  of  acceptance  of  proposals  in  marriage  treaty,  87. 

representations  made  as  marriage  treaties,  87. 

in  fraud  of  agreement  for  settlement,  172. 

not  part  performance,  173,  184. 

but  acts  connected  with  may  be,  184. 
MARRIAGE  ARTICLES  may  be  performed  at  suit  of  issue,  42. 

collaterals,  43,  44. 
appointees,  44. 

must  be  performed  entirely  if  at  all,  242. 

may  be  enforced  notwithstanding  default  of  performance  on  other  part,  277. 
not  where  articles  are  mutually  dependent,  278. 
nor  by  defaulting  party,  278. 
nor  by  collaterals  of  that  party,  279. 
MAXIMS,  "aicputas  agit  in  personam,"  25. 

"  de  minimis  non  curat  lex,  "  36. 

"ex  dolo  malo  non  oritur  actio,"  144. 

"  id  ccrtum  est  quod  certum  reddi  potest,"  92,  93. 

"ignorantia  legis  non  excusat,"  224. 

"non  vidcntur  qui  errant  conscntirc,"  212. 

"omnia  presumuntur  rite  esse  acta,"  259. 
MEDICINE,  secret  contract  as  to,  not  enforced,  16. 
MINES,  agreement  to  work,  20,  105. 

misrepresentations  as  to,  196,  199. 

time  of  the  essence  in  contracts  as  to,  315,  316. 


INDEX.  285 

MINES,  continued. 

rifrht  to,  a  subject  of  compensation,  352. 
MISREPRESENTATION.     (See  Fraud,  Represeniaiion.) 
a  ground  of  defence,  191. 

for  setting  aside  contract,  191. 
elements  of,  191. 

mode  in  which  misrepresentation  may  be  set  up,  192. 
statement  must  be  actually  untrue,  192. 
the  not  knowing  it  to  bo  true,  192. 

the  person  making  it  need  not  have  known  it  to  be  false,  192,  193. 
where  the  agent  has  no  knowledge,  but  the  principal  has,  193. 
allowing  a  person  to  continue  in  error,  1 94. 
it  must  have  been  made  in  relation  to  the  contract,  194. 
generally  at  the  time  of  the  treaty,  194. 
corrupt  motive  not  necessary,  195. 
the  reliance  on  it  by  the  other  party,  195. 
vagueness  of  the  representations,  196. 

whether  of  that  which  can  be  accurately  known  or  not,  196,  198. 
grounds  for  considering  there  was  no  reliance,  197. 
resort  to  other  means  of  knowledge,  198. 
other  knowledge  itself,  200. 
when  defect  is  patent,  200. 

analogy  with  warranties,  200. 
evidence  of  knowledge  must  be  clear,  201. 
other  means  of  knowledge  being  open  will  not  displace  a  misrepreseu- 

tation,  201. 
nor  a  general  statement  inconsistent  with  the  misrepresentation,  201. 
nor  recommendation  to  consult  advisers,  202. 
in  case  of  sale  with  all  faults,  202. 
in  case  of  assignment  of  the  contract,  203. 
misrepresentation  must  be  essential,  203. 
avoids  contract  not  quoad  hoc  but  in  toio,  204. 
to  vendor  by  purchaser  of  chances  of  sale,  208. 

value  of  estate,  208. 
conditions  of  sale  inapplicable,  where,  343. 
no  compensation,  where,  352. 
MISTAKE.     (See  Variation,  Parol.) 
in  compromises,  107. 
common,  as  to  subject-matter,  109. 
kinds  of,  in  contracts,  212. 
defence  founded  on,  212. 
provable  by  parol  evidence,  213. 
of  defendant,  214. 
purely  of  defendant,  214. 
of  both  parties  a  ground  for  rescission,  221. 

for  rectification,  222. 
evidence  must  be  clear,  223. 

on  what  kinds  of  mistake  the  court  interferes,  224. 
mistake  of  law,  224. 
speculation  as  to  facts,  225. 

mistake  not  about  the  essence  of  the  agreement,  225. 
writing  purposely  differs  from  agreement,  225. 
specific  performance  with  correction  of,  227. 
MORTGAGEE,  not  a  party  to  suit,  32. 

of  agreement  may  sue  on  it,  52. 
MORTGAGOR,  not  party  to  suit  for  sale  under  power,  32. 

contract  by,  enforced  against  mortgagee  buying  with  notice,  58. 
MULTIFARIOUSNESS,  bill  against  several  purchasers  bad  for,  39. 
MULTIPLICITY  of  suits,  avoiding,  37. 
MUTUALITY  in  contracts  of  sale,  10. 

want  of,  where  one  party  cannot  contract,  71. 
December,  1858. — 19 


286      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

MUTUALITY,  continued. 
required,  133. 
in  case  of  tenant  in  tail,  133. 

subject  to  a  leasing  power,  134. 
infant,  133. 

vendor  having  no  estate,  133. 
husband  and  wife  selling,  134,  n. 
time  when  judged  of,  135. 
exceptions  to,  135. 

in  unilateral  contracts,  135. 

where  waived,  136. 

agreement  signed  by  one  party  only,  136. 

agreement  contained  in  a  deed  poll,  137. 

vendor  has  only  partial  interest,  137. 

Lord  Redesdale's  views,  139. 

NE  EXEAT,  when  granted  in  specific  pepformance  suits,  337. 
NOTICE,  purchaser  with,  liable  to  contracts,  57. 

covenants,  59. 

rebuts  implied  terms,  100,  101. 

doctrine  of,  does  not  apply  where  misrepresentation,  201,  202. 

limiting  time  for  performing  contract,  (see  Time,  Lcq)se  of,)  317. 

of  refusal  to  complete,  effect  of,  on  time,  322. 
NOVATION,  parties  to,  may  be  parties  to  suit,  35. 

rescinds  original  contract,  301. 

by  intervention  of  new  party,  302. 

by  introduction  of  a  new  term,  302. 

must  be  a  binding  contract  in  itself,  303. 

how  evidenced,  303. 

OFFER.     (See  Proposal  and  Acceptance.) 

OFFICE,  agreement  to  grant,  134. 

OPTION  to  purchase,  317,  321. 

(OWNERSHIP,  acts  of.     (See  Payment  into  Court,  Waiver.) 

PARLIAMENT,  when  application  to,  necessary,  292. 

agreement  to  apply  to,  how  enforced,  295. 

injunction  against  applying  to,  331. 

time  granted  for  application  to,  371. 
PAROL.     (See  Evidence,  Part  Performance,  Variation.) 
PARTIAL  EXECUTION  OF  CONTRACT.     (See  Incapacity.) 
PARTIES.     (See  Agent,  Assijnmcnt,  Incompleteness  of  Contract,  Mortgagee, 
Mortgagor.) 

parties  to  contract  parties  to  suit,  32. 
conveyance,  32. 

judgment  creditors,  32,  and  n. 

having  adverse  rights,  33,  38. 

having  no  interest,  33. 

sub-purchaser,  33. 

parties  to  a  new  contract,  35. 

reversioner,  35. 

remainderman,  36. 

assignees  in  bankruptcy,  37. 

some  suing  or  being  sued  on  behalf  of  all,  37. 

purchaser  of  adjoining  lot,  38. 

trustees,  39. 

cestuis  que  trust,  39. 

issue  in  cases  of  marriage  contracts,  42. 

collaterals  in  like  cases,  43. 

appointees,  44. 

death  of  party,  77. 


INDEX.  287 

PARTIES,  continued. 
death  of  vendor,  47. 

purchaser,  48. 
proposed  lessee,  49. 

contractor  where  personal  qualities  are  required,  49. 
heir  of  vendor,  47. 

•when  au  infant,  48.  « 

of  purchaser,  48. 
devisee  of  vendor,  47. 

purchaser,  48. 
widow  of  vendor,  48. 
executor  of  vendor,  47. 

purchaser,  48. 
proposed  lessee,  49. 
assignee  of  agreement,  (see  Assignment,)  51. 
assignor  of  agreement,  51. 
assignee  of  the  property,  57. 
agents,  (see  Af/ents,)  67. 
PARTITION,  agreements  for,  possession  may  be  part  performance  of,  131. 
PARTNERSHIP,  agreement  for,  when  enforced,  407. 
when  not  enforced,  18,  407. 

when  silent  as  to  capital,  99. 
when  illegal,  407. 
articles  varied  by  course  of  dealing,  303. 
enforced  bv  injunction,  330. 
PART  PERFORMANCE,  a  ground  of  jurisdiction,  21. 
what  acts  are  not,  22. 

renders  court  unwilling  to  entertain  objections  to  the  contract,  90,  144. 
met  by  plea  and  answer,  157. 
marriage  is  not,  173. 

takes  agreement  out  of  Statute  of  Frauds,  173. 
essentials  of,  174. 
acts  must  refer  to  an  agreement,  174. 

cannot  show  the  terras,  174. 
acts  must  not  be  referable  to  any  other  title,  17G. 
must  render  non-performance  a  fraud,  176. 
when  not  so  from  character  of  person,  177. 

by  tenant  for  life  as  against  remainderman,  177. 
by  persons  not  parties  to  contract,  177. 
■where  not  so  from  nature  of  the  act,  178. 
payment  of  purchase-money  not  binding  on  purchaser,  178. 
where  there  are  alternative  remedies,  178. 
agreement  must  be  such  as  can  be  enforced,  178. 
not  of  an  honorary  character,  179. 
nor  incomplete,  179. 
possession,  not  always  part  performance,  176. 
where  part  performance,  180. 
adverse,  not  part  performance,  179. 
laying  out  money,  when  part  performance,  181,  183. 
payment  of  purchase-money  not  part  performance,  182. 
other  money,  183. 
auction  duty,  183. 
additional  rent,  184. 
marriage  alone,  not,  173,  184. 

acts  connected  with  it  may  be,  184. 
execution  of  marriage  settlement,  185. 
cohabitation,  185. 
acts  previous  to  contract,  185. 
preparatory  acts,  186. 

giving  instructions  for  deeds,  186. 
obtaining  a  release  from  third  party,  18C. 


288      ri^Y    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

PART  PERFORMANCE,  conUmied. 

preparatory  appropriation  of  money,  186. 

performance  by  another  party  to  the  agreement,  187 

evidence  parol,  let  in  by  the  part  performance,  188. 

must  be  clear,  188. 

some  indulgence  when  possession  has  been  taken,  188. 

what  variations  immaterial,  189. 

parol  not  excluded  by  part  being  reduced  to  writing,  189. 

admission  in  answer,  sufficient  evidence,  189. 

though  the  statute  be  pleaded,  189. 
where  contract  denied  by  answer,  189. 
where  different  agreement  is  set  up  by  answer,  190. 
inquiry  as  to  terms  of  contract,  190. 

renders  contract  not  under  seal  binding  on  corporation,  177. 
of  a  novation,  304. 
PATENTS,  time  where  of  essence  in  contracts  as  to,  316. 
PAYMENT.     (See  Part  Performance.) 

PAYMENT  INTO  COURT,  where  vendor  has  made  out  title,  390. 

not,  390. 
where  agreement  allows  possession,  391. 
when  purchaser  is  in  possession  under  another  title,  391. 
where  purchaser  acts  as  owner,  391. 
procedure  on  order  for,  392. 
PENALTY,  effect  on  specific  performance,  26. 

distinction  between  penalty  and  liquidated  damages,  26,  31. 

cognizable  at  law,  20. 
performance  not  limited  to  amount  of,  27. 
PERFORMANCE,     (See  Conditions,  Part  Performance.) 
PERFORMANCE  OF  HIS  PxiRT  BY  PLAINTIFF,  how  must  be  proved 
at  law,  2,  273. 
must  be  shown  in  suit,  270. 
extends  to  representations,  270. 

but  not  to  non-essential  terms  of  the  contract,  272,  405. 
nor  to  collateral  contracts,  273. 
excused  where  a  tender  would  have  been  refused,  274, 

where  non-performance  is  due  to  default  of  defendant,  274, 
but  not  by  infancy,  274. 

by  impossibility,  where,  (see  Imjwssibiliii/,)  275. 
exception  in  marriage  articles,  277. 
limitations  of  the  exception,  278. 
in  respect  of  acts  to  be  done,  279. 
PLAN,  contract  void  from  doubt  as  to,  103. 

how  far  a  binding  representation,  271. 
PLEA.     (See  Pleading.) 

PLEADING.     (See  Claim,  Parties,  Variation,  Parol.) 
bill  on  contract  by  agent  must  allege  agency,  163. 

how  it  must  allege  contract  within  the  statute,  169. 

how  it  may  allege  letters  as  constituting  the  contract,  170. 

or  as  evidence  of  it,  170. 
alleging  parol  variation  and  offering  defendant  his  election,  220,  233. 
for  specific  performance  with  parol  variation,  227. 
must  show  performance  of  things  on  plaintiff's  part  already  to  be 
done,  270. 
and  readiness  and  willingness  of  plaintiff  to  perform  things  on 

his  part  thereafter  to  be  done,  279. 
performance  of  conditions,  287. 
capacity  of  defendant  to  perform  contract,  290. 
praying  rescission  in  alternative,  311. 
should  pray  ne  exeai  where  required,  337. 

by  vendor  seeking  compensation  must  raise  that  question,  344. 
by  purchaser  seeking  compensation,  345. 


INDEX.  289 

PLEADING,  continued. 

bill   relying  on  a  waiver  must  allege  both  facts  and  legal  conclusion,  3G8. 
alleging  acts  of  ownership,  31).'3. 

in  alternative  for  specific  performance  or  damages,  bad,  395. 
by  purchaser  in  alternative  for  specific  performance  or  enforcing  hi.s 
lien,  good,  390. 
demurrer  relying  on  Statute  of  Frauds,  156. 
answer  setting  up  Statute  of  Frauds,  158. 

admitting  contract  alleged,  170,  189. 
denying  contract  alleged,  189. 
alleging  a  different  contract,  190. 
setting  out  defect  in  plaintiff's  title,  357. 
admitting  purchaser  has  only  one  objection  or  none,  357. 
good  title,  3G2. 
plea  of  Statute  of  Frauds,  156. 

aud  answer  relying  on  Statute  of  Frauds,  157. 
POSSESSION.     (See  Interest,  Part  Performance,  Payment  into  Couii,  Bents.) 
PRESUMPTION,  terms  implied  in  contracts  by,  99. 
title  depending  on,  257. 

on  presumption  omnia  rite  esse  acta,  259. 
PRICE.  (See  Consideration,  Inadequacy  of;  Contract,  Completeness  of.) 

inadequacy  of,  evidence  of  unfairness,  110. 
PRINCIPAL.     (See  Agent.) 
PRINTED  NAME.     (See  Signature.) 

PROPOSAL  AND  ACCEPTANCE,  proposal  not  assignable,  57,  75. 
contract  constituted  by,  75. 

difference  between  proposal  and  memorandum  of  agreement,  75. 
essentials  of  acceptance,  76. 
acceptance  must  be  unequivocal,  76. 
and  without  variance  from  offer,  77. 
and  not  introduce  a  new  term,  78. 
and  without  unreasonable  delay,  79. 
proposal  determined  by  withdrawal,  80. 
by  refusal,  80. 
variation  of,  81. 
acceptance  may  be  by  parol,  81. 
by  the  bill,  82. 
by  acts,  82. 
time  from  which  acceptance  operates,  82. 
by  agreement  to  do  an  act  on  demand,  and  a  demand,  82. 
by  representation  and  conduct,  (see  Representations,)  83. 
PUFFER,  where  one  is  employed  and  the  sale  is  without  reserve,  209. 
in  other  sales,  where  one  person  is  employed,  209. 

where  two  or  more  persons  are  employed,  210. 
PURCHASER  FOR  VALUE  WITHOUT  NOTICE,  sale  to,  a  defence,  200 

QUARRY,  agreement  to  work,  not  enforced,  20. 

RAILWAY.     (See  Company,  Contract,  Corporation,  Amalgamation.) 
contract  to  make,  7,  20,  104. 

relief  on,  previous  to  completion,  243. 
contract  as  to  traffic,  102. 

to  make  roads  for  landowner,  103. 

for  "land  required"  for,  104. 

to  work,  134. 

to  make  and  maintain  siding,  243. 

when  conditional  ou  making  of,  287. 

enforced  cy  pres,  295. 
time  running  under  contracts  by,  324. 
when  interest  on  purchase-money  will  not  run,  380. 
RECITAL,  acted  on  as  agreement,  27,  28. 


290      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

RECTIFICATION  of  coutract  for  mistake,  222. 

specific  performance  with,  227. 

and  other  relief  in  same  suit,  235. 
REFERENCE  OF  TITLE.     (See  Title,  Beferencc  of.) 
RELIEF  SUBSEQUENT  TO  DECREE,  principle  of,  338. 

injunction  against  resort  to  other  court,  338. 

rescission  of  contract  after  decree  for  performance,  339. 
REMAINDERMAN,  when  he  may  sue  or  be  sued  on  contract  of  life  tenant,  36. 

not  liable  on  contracts  of  tenant  in  tail,  36. 

not  bound  by  part  performance  of  previous  tenant,  1T7. 
RENEWAL.     (See  Covenant  for  BenewaL) 
RENT.     (See  Interest.) 

rent  increased,  treated  as  liquidated  damages,  29. 

additional  payment  of,  as  part  performance,  184. 

rents,  what,  vendor  is  charged  with,  385. 

occupation  rent  payable  by  vendor  in  possession,  387. 

by  purchaser  in  possession,  392. 
REPAIRS,  covenant  to  do,,  enforced,  2L 

stipulation  as  to,  held  uncertain,  104. 
REPRESENTATION.     (See  Misrepresentaiion.) 

and  acts  on  faith  of,  binding.  83. 

of  things  past,  83. 

of  things  future,  84. 

must  be  clear  and  absolute,  84. 

when  not  binding,  84. 

when  binding,  87. 

in  cases  of  m.arriage  treaties,  87. 

made  by  plaintiff  must  be  performed,  270. 

plan  exhibited,  how  far  a  binding,  271. 
REPUDIATION.     (See  Letters,  Rescission  of  Contract.) 
RESCISSION  OF  CONTRACT,  for  fraud,  106,  308,  309. 

for  inadequacy  of  consideration  with  other  circumstances,  128. 

alone,  128. 

for  misrepresentation,  191. 

for  mistake,  221. 

for  defect  in  subject-matter,  252. 
arising  after  contract,  262. 

by  acts  in  contravention  of  contract,  282, 

a  defence,  301. 

by  consent  of  parties,  301. 

by  novation,  (see  Novation,)  302. 

by  simple  agreement,  304. 
evidenced  by  parol,  304. 

even  rescinding  agreement  under  seal,  305. 
must  be  an  absolute  abandonment,  306. 
evidenced  by  conduct,  306. 

condition  for,  when  to  be  exercised,  307. 
when  it  revives,  309. 

limited  by  condition  for  compensation,  310. 
does  not  apply  where  fraud,  343. 

bill  praying,  311. 

after  decree  for  performance,  339. 
RESERVE.     (See  Sate  without.) 
RETRACTATION.     (See  Proposal  and  Acceptance.) 
REVERSIONARY  INTERESTS,  sale  of,  at  undervalue,  124,  132. 

onus  of  proof  of  fairness,  124. 

time  of  the  essence,  in  sales  of,  315. 

interest  on  sales  of,  389. 
REVERSIONER  where  a  party  to  suit,  35. 

he  may  enforce  covenants  when  in  possession,  35. 

out  of  possession,  36. 


INDEX.  291 

REVOCATION.     (See  Agent.) 

ROADS  to  be  made  by  vendor,  representation  as  to,  270,  271. 

SALE,  AGREEMENT  FOR,  implied  term  as  to  interest  sold,  99. 

as  to  good  title,  99. 
as  to  title-deeds,  99. 
of  all  vendor's  interest,  whatever  it  is,  142. 
"without  reserve,"  209. 

"  sale  with  all  faults  ;"  biuds,  however  many  may  be  defects  in  subject- 
matter,  251. 
not  where  defects  are  studiously  concealed,  251. 
misrepresentation,  203,  251. 
SALES  BY  THE  COURT  wheu  concluded,  2r)3. 
SCOTCH  LAW  enforces  building  contracts,  20. 

allows  a  stranirer  to  sue,  41. 
SECRET  PURCHASE.     (See  Trustee.) 
SEPARATION  DEED,  agreement  for,  enforced,  24,  410. 
injunctions  incident  to,  410. 
consideration  in,  411. 
SERVICE.     (See  Hiring  and  Service.) 
SETTLEMENT.     (See  Voluntar;/  Settlement.) 
SHARES,  railway,  contract  for,  enforced,  12,  19,  302. 
time  essential  in  such  contract,  316. 
of  estate,  not  forced  on  purchaser  of  whole,  141. 
SHIP,  contract  of  sale  of,  enforceable,  13. 
must  recite  certificate,  408. 
where  fraud,  408,  n. 
SIGNATURE  by  one  party  only,  81, 136,  161. 
what  is  sufficient,  161,  162. 
how  far  intention  is  requisite,  161. 
in  pencil,  163. 
in  print,  163. 
by  initials,  163. 
when  presumed,  169. 
SOLICITOR.     (See  Attorney.) 

SPECIFIC  PERFORMANCE,  origin  of  jurisdiction,  I. 
where  legal  remedy  deficient,  1. 
by  default  of  plaintiff,  2. 
from  nature  of  sul)ject-matter,  3. 
from  the  parties,  3. 
from  form  of  contract,  3. 
formerly  only  where  damages  at  law,  4. 
where  legal  remedy  inadequate,  5. 
none,  where  adequate,  6. 
nor  semhle  where  alternative  remedy,  7. 
where  legal  remedy  not  so  beneficial,  8. 
at  suit  of  vendor,  10. 

where  damages  not  accurate  satisfaction,  15. 
none,  where  contract  revocable,  18, 19,  407. 
where  of  building  contracts,  19,  20,  21. 
nor  of  contracts  of  hiring  and  service,  22. 
where  no  original  jurisdiction  in  court,  24. 
of  foreign  contracts,  24. 
of  contracts  for  land  abroad,  25. 
none  of  voluntary  contracts,  25. 

where  plaintiff  proceeds  at  law,  25. 
matter  rest  in  treaty,  75. 
conclusion  of  contract  is  doubtful,  75. 
contract  incomplete,  90. 
necessitating  breach  of  trust,  113. 
party  not  lawfully  competent,  113. 


292      FRY    ON    SPECIFIC    PERFORMANCE    OF    CONTRACTS. 

SPECIFIC  PERFORMANCE,  continued. 

none  wliere  court  cannot  execute  the  whole  contract,  237,  240. 
except  where  right  of  suit  is  perfect,  242. 

contract  can  be  completely  performed,  though  there  are 

future  acts,  243. 
part  cannot  be  performed  through  defendant's  default,  244. 
there  are  negative  and  positive  stipulations,  244. 
agreement  is  partly  honorary,  247. 

alternative,  246. 
part  that  could  not  be  enforced  has  been  performed,  247. 
STATUTE  32  H.  VIII.  c.  9,  55,  292. 
6  Geo.  IV.  c.  110,  408. 
8  &  9  Vict.  c.  16,  155. 
8  &  9  Vict.  c.  89,  408. 
Trustee  act,  1850,  48,  73. 
Lunacy  Regulation  Act,  1853,  73, 

17  &  18  Vict.  c.  104,  408. 

18  &  19  Vict,  c,  91,  408. 

STATUTE  OF  FRAUDS.     (See  Agent,  Letters,  Pleading,  Signature.) 
foreign  contract  within,  24,  155. 

does  not  prevent  a  party  to  contract  disclosing  his  principal,  67. 
requires  only  signature  by  party  charged,  81,  136,  161. 
nature  of  interest  of  other  party,  137,  n. 
allows  parol  evidence  of  identity,  92. 
refers  to  solemnities  not  procedure,  155. 
how  taken  advantage  of,  156. 
by  demurrer,  156. 
by  plea,  156. 

by  plea  and  answer,  157. 
by  answer,  157. 
what  satisfies  the  statute,  158. 

agreement  may  be  evidenced  by  any  kind  of  writing,  159. 
must  leave  nothing  open,  159. 
approval  of  a  draft  not  enough,  160. 
where  a  formal  agreement  is  intended,  160. 
parol  agreement  before  marriage,  written  after,  169. 
agreement,  how  to  be  pleaded,  169. 
what  takes  agreement  out  of,  170. 
sale  by  court,  170. 
admission  in  answer,  170. 

as  against  representatives,  171. 
fraud,  (see  Fraud,)  171. 

part  performance,  (see  Part  Performance,)  173. 
does  not  affect  position  of  defendant,  213. 

render  writing  necessary  for  agreement  to  rescind,  305. 
STEWARD  not  a  party  to  suit  for  sale,  32. 
STOCK,  agreement  for  sale  of,  not  enforced,  11. 
STRANGER  to  contract  not  a  proper  party,  32,  41. 
cannot  sue,  though  taking  a  benefit,  41. 
exceptions  to  rule,  42. 

as  to  marriage  contracts,  42. 
issue,  42. 
collaterals,  43,  44. 
appointees,  44. 
from  relationship  of  parties,  45. 
where  third  party's  status  is  charged,  45. 
rendering  one  alternative  impossible,  300. 
interest  of,  in  contract  does  not  prevent  its  rescission,  301. 
SUBJECT-MATTER.     (See  Default  in;  Consideration,  Failure  of.) 

not  vendor's  at  time  of  contract,  291,  292. 
SUB-PURCHASER  when  a  party,  33. 


INDEX.  293 

SUCCESSION.     (See  Expectancies.) 

SUPPRESSIO   VEIil may  prevent  performance,  111. 

SURPRISE.     (See  Contract,  Fairness  in.) 

TENANCY  FROM  YEAR  TO  YEAR,  agreement  for,  not  enforced,  3. 
TENANT  FOR  LIFE,  contract  by,  prejudicial  to  remainderman,  117. 
not  binding  on  remainderman,  133. 
secus  where  contract  under  a  power,  134. 
contract  by,  inconsistent  with,  or  in  excess  of,  the  power,  138, 139,  140,  142. 
estate  of,  sans  waste  when  not  claimable  by  a  purchaser  of  tlae  fee,  141. 
part  performance  of,  not  binding  on  remainderman,  177. 
TENANT  IN  TAIL,  cannot  sue  or  be  sued  on  contracts  of  tenant  for  life,  133. 

in  remainder,  contract  for  sale  by,  how  enforced  against,  138. 
TENURE,  DIFFERENCE  IN.     (See  Co7npensaiion.) 
THEATRE,  contract  to  perform  at,  103. 

not  to  perform  at,  245,  246,  330. 
TIMBER,  ornamental,  not  a  subject  of  compensation,  353. 
TIME,  LAPSE  OF.     (See  Title,  Reference  of.) 

will  be  considered  as  making  possession  an  act  of  part  performance,  181. 
a  defence,  312. 
at  law  essential,  312. 
in  equity,  313. 

originally  of  the  essence,  313. 
express,  313. 
implied,  314. 

from  subject-matter  or  object  of  contract,  314. 
where  for  commercial  purposes,  315. 
in  contracts  as  to  mines,  315,  316. 
where  delay  creates  hardship,  317. 
from  other  parts  of  contract,  317. 
where  contract  is  unilateral,  317. 
engrafted  by  notice,  317. 

time  must  be  reasonable,  318. 
what  notice  required,  319. 
as  laches,  319. 

when  contract  unilateral,  321. 
when  contract  substantially  executed,  322. 
pending  negotiation,  323. 
attributable  to  defendant,  323. 
when  deposit  is  left,  323. 
where  possession  is  continued,  324. 
under  railway  acts,  324. 
what  claim  prevents  it  running,  324. 
in  covenants  to  renew,  404. 
waiver  of  objections  as  to  time,  324. 
TITHES.     (See  Comjnnsation.)  , 

TITLE  to  be  shown  by  vendor,  99. 

must  be  free  from  doubt,  253.  * 

present  rule  as  to  doubtful,  253. 
amount  of  doubt  that  is  a  defence,  255. 
moral  certainty  only  required,  256. 
depending  on  presumptions,  257. 
nature  of  the  doubt,  261. 
bill  dismissed  at  hearing  for  want  of,  357, 
TITLE  DEEDS.     (SeeZ>m?5.) 
TITLE,  REFERENCE  OF,  origin  of  right,  357. 
when  vendor  plaintiff,  357. 
vendor  cannot  except  to  his  own,  357. 
when  purchaser  plaintiff,  358. 
under  what  contracts,  358. 
when  not  made,  358. 


294       FRY    ON    SPECIFIC    PERFORM  AX  CE    OF    CONTRACTS. 

TITLE,  REFERENCE  OF,  continued. 

where  vendor  sells  such  interest  as  he  has,  358. 
limited  inquiry,  3o9. 

excluding  lessor's  title,  360. 
waiver  of  right  right  to,  (see  Waiver,)  361. 
when  made,  368. 

at  the  hearing,  368. 
before  hearing,  but  after  answer,  368. 
before  answer,  369. 
extent  of  the  reference,  370. 
when  title  may  be  made  out,  371. 
when  time  not  granted,  371. 
old  title  cured  or  new  title,  372. 
form  of  certificate,  373. 
exceptions,  373. 
reference  back,  373. 

title  at  hearing  on  further  directions,  373. 
what  are  questions  of  title,  369. 

distinguished  from  conveyance,  374. 
evidence,  375. 
TRADE,  injunction  against  carrying  on,  330,' 331. 
TRESPASS,  bill  for  performance  and  to  restrain,  33. 
TRUST  of  chattels,  15. 

for  performance  of  illegal  contract,  145. 
the  result  of  an  illegal  contract,  146. 
TRUSTEE,  when  a  party,  39. 

secret  contract  with,  when  enforceable  by  beneficiary,  53,  54. 

for  mai-ried  ladies  where  parties,  72. 

incapacity  to  contract  with  cestuis  que  trust,  74. 

what  contracts  not  enforced  against,  113,  114,122. 

contracts  between,  and  cestui  que  trust  enforced  by  latter,  136. 

covenants  by,  280. 

renewals  of  leases  by,  404. 

VLTRA   VIBES.     (See  Contract  Vltra  Vires.) 
UNCERTAINTY.     (See  Contract,  Certaintij  of.) 
UNDERLEASE,  agreement  for,  what  terms  implied,  100. 

not  forced  on  purchaser  of  lease,  349. 
UNDERTAKING.     (See  Contract  Uailateral,  Honorary  Engagements.) 
UNFxilRNESS.     (See  Contract,  Fairness  in.) 

VARIATION,  PAROL,  doctrine  does  not  apply  where  part  performance,  189. 

defence  to   suit,  216. 

where  enforced,  216. 

where  bill  is  dismissed,  217. 

where  plaintiff  put  to  his  election,  218. 

alleged  by  plaintiff',  220,  227,  233. 
defendant,  220. 

coming  out  on  evidence,  220. 

what  evidence  required,  220. 

subsequent  to  the  agreement,  226. 

can  it  be  set  up  by  the  plaintiff'?  227. 
VOID,  conditions  rendering  contracts,  307. 
VOLUNTARY  CONTRACTS  not  enforced,  25. 

VOLUNTARY  SETTLEMENT,  sale  to  override,  cannot  be  enforced  by  set- 
tlor, 113,258. 

but  may  be  by  purchaser  from,  136. 

title  depending  on  invalidity  of,  forced  on  purchaser,  258. 

WAIVER  of  proviso  against  assignment,  55. 
of  want  of  mutuality  136,372. 


I  N  D  E  X.  295 


WAIVER,  continued. 
of  fraud,  210. 

of  breach  of  covenant,  285. 
of  conditions  precedent,  28?. 
of  right  to  rescind,  .''-08,  .S09. 
of  objections  as  to  time,  H2t. 

not  a  waiver  of  the  thing  to  be  done,  326. 
of  reference  of  title,  3G1. 
by  vendor,  3(51. 
by  purchaser,  o(Jl. 
express,  3(32. 
implied,  3G2. 

where  objection  known  and  curable,  363. 

incurable,  363. 
where  an  agreement  for  possession,  364. 
where  objection  is  not  known,  3G4. 
from  silence  of  a  subsequent  agreement,  3GC. 
acts  not  a  waiver,  36G. 
waiver  of  lessors  title,  366. 
effect  of  waiver  of  right  to  reference,  367. 
how  pleaded,  367. 
WARRANTY  in  contracts  for  sale  of  chattels,  262,  263. 
WAY,  RIGHT  OF,  sale  of  land  without,  124. 

over  ground  sold  for  building,  348. 
WIDOW  of  vendor,  where  a  party,  48. 
WIFE.     (See  Baron  and  Feme.) 
WITHOUT  RESERVE.     (See  Sale,  Agreement  for.) 


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